MAHENDRA KUMAR Vs. KAILASH NARAYAN

JUDGEMENT

(1.) BY this appeal under Order 43 Rule 1(u) of CPC challenge is made to the order of remand dated 18/02/2010 passed by First Appellate Court, in first appeal No.21A/2009.

(2.) FACTS necessary for disposal of this appeal are to the effect that plaintiff and defendants are real brothers. Plaintiff filed the suit on 22/02/2001 against his father Late Janki Prasad and brothers claiming ¼ share in the suit property (agricultural land) claiming to be an ancestral property. Defendants including Late Janki Prasad filed written statement on 30/07/2001 denying that the property is an ancestral property, instead it was pleaded that the suit property was self -acquired property of Late Janki Prasad. On 04/02/2002, defendant Janki Prasad died and his name was deleted. On 02/08/2006 suit was dismissed by the trial Court holding that plaintiff had failed to prove that suit property was either ancestral property or self acquired property of his father late Janki Prasad. Aggrieved thereby, plaintiff/respondent preferred Civil Appeal No.96A/2006 and during pendency of the appeal, an application under Order 41 Rule 27 CPC was submitted to bring on record certain documents, as well as, the grievance that the plaintiff was denied the opportunity of leading evidence. The first appellate Court after hearing both the parties had ordered for remanding the case to the trial Court to decide the suit afresh allowing plaintiff/respondent to lead evidence and to take into consideration the documents filed under Order 41 Rule 27 CPC vide order dated 29/01/2009. After remand, the trial Court vide judgment and decree dated 16/07/2009 again dismissed the suit and found that the plaintiff/respondent has failed to prove that the suit property was ancestral property.

(3.) BEING aggrieved thereby, an appeal was preferred vide Civil Appeal No. 21 -A/2009 by plaintiff/respondent and during pendency of appeal, an application under Order VI Rule 17 CPC was filed by him to the effect that as the trial Court return the finding that suit property is an ancestral property of Late Janki Prasad; however, did nto return findings as regards respective shares of plaintiff and defendants No. 1 and 2, since Janki Prasad has died intestated.