KISHAN Vs. KANCHANBAI

JUDGEMENT

(1.) THE defendant/appellants have directed this appeal against the judgment and decree dated 17.2.88 rendered by Additional District Judge, Mandsaur camp at Neemuch in Civil Suit No. 25A of 86, thereby decreeing the suit of the respondents/plaintiff for declaration, partition and possession of the disputed property.

(2.) BRIEFLY stated the facts of the case are that the respondents -plaintiff have filed a suit for declaration, partition, possession, perpetual injunction and mesne profit against the appellants with respect to agricultural land and houses situated at Belara Tahsil Malhargarh. The respondents' case, in short, is that they are daughters of deceased Amra, who had no male issue and that after the death of Amra, appellant Sitaram with fraudulent intention represented him to be adopted son of deceased Amra and got his name mutated over the suit -property. Appellant Sitaram contested the case filed by the respondent/plaintiffs. The trial Court has held that ceremony of adoption of the appellant Sitaram is not proved and decreed the suit of the plaintiffs, for 1/4th share in the suit -property and decree for possession of 1/4th share of the suit -property alongwith mesne profit to the tune of Rs. 2,340/ -. Aggrieved, the appellants have filed this appeal against the impugned judgment and decree of the trial Court.

(3.) IN view of the aforesaid facts of the case on hand without considering the case on merits, impugned judgment and decree of the trial Court are set aside and the case is remanded back to the trial Court for passing fresh judgment after considering oral and documentary evidence of the parties. While passing fresh judgment, the trial Court shall only hear the arguments of both sides but without recording any new evidence, if produced. In the result, the appeal is allowed. The impugned judgment and decree of the trial Court are set aside and the case is remanded back to the trial Court for passing fresh judgment in accordance with the law in the terms as indicated above. There shall be no orders as to costs of this appeal. Counsel's fee as per schedule, if certified. The trial Court is directed to dispose of the suit within a period of two months from the date of first appearance of the parties before it. Parties through their counsel are directed to appear before the trial Court on 16th March, 1998. Record of the trial Court be transmitted immediately.