AKHILESH HAZARI Vs. LALJI DUBEY AND ANOTHER

JUDGEMENT

(1.) This miscellaneous appeal filed under order 43 Rule 1(u) of Code of Civil Procedure, 1908 is directed against the order dated 03.05.2008 passed in Civil Appeal No.11-A/2007 by the First Additional District Judge, Damoh arising out of the judgment and decree dated 05.11.2007 passed in Civil Suit No.45-A/2007 decided by Vth Civil Judge, Class II, Damoh.

(2.) Brief facts, necessary for adjudication of this appeal, are that the respondent No.1/plaintiff filed a civil suit for declaration and possession. The defendant No.1 filed his written statement and denied the averments of the plaint. The trial Court framed the issues, recorded the evidence and heard the rival contention of the parties. By judgment and decree dated 05.11.2007, the trial Court recorded a finding that plaintiff could not establish that he was the owner of the suit land. However, another finding was recorded by the trial Court that the Will in favour of defendant No.1 could not be proved by him. Since the plaintiff's title was not proved, the suit was ultimately dismissed.

(3.) Aggrieved, the plaintiff filed the Civil Appeal No.11- A/2007. The lower appellate Court set aside the findings of the trial Court on issue No.1. The Court upheld the finding of the trial Court on issue No.2. The lower appellate Court set aside the judgment and remitted the matter back to the trial Court in purported exercise of power under Order 41 Rules 23 & 25 of CPC.