LOKANATH BHOI Vs. GAYA PRASAD BHOI

JUDGEMENT

(1.) This Civil Revision has been tiled challenging the order passed by the District Judge, Sambalpur in Misc. Appeal No. 40 of 2000. The opposite party Nos. 1 and 2 filed Misc. Succession Case No. 60 of 1994 under Section ,383 of the Succession Act, 1925 (In short, 'the Succession Act') for revocation of the succession certificate granted by the Civil Judge (Senior Division), Sambalpur in Misc. Case No. 25 of 1993. That succession certificate was granted in favour of the present petitioner. After considering the contention of the parties, learned Civil Judge, as per the order passed by him on 28-11-2000, dismissed the application for revocation of the succession certificate. As against that, opposite party Nos. 1 and 2 preferred Misc. Appeal No. 40 of 2000. On 17-4-2001, learned District Judge allowed that appeal and consequentially revoked the succession certificate granted in Misc. Case No. 25 of 1993 with a direction to grant the succession certificate in favour of the opposite parties 1 and 2. That order is under challenge in this Civil Revision.

(2.) The impugned order is challenged by the petitioner precisely on two grounds, viz.

(3.) The opposite party members raised a preliminary objection on the maintainability of the Civil Revision in view of amendment of Section 115 of the Code of Civil Procedure, 1908 (in short, 'the Code') by Act 46 of 1999 and argued that if the impugned order is set aside, then that would not dispose of the proceeding, i.e., the proceeding under the Succession Act. They, however, defended the factum of maintainability of the appeal in the Court of District Judge and alternatively argued that in the event appeal before the District Judge is found not maintainable, then because of the order of remand passed by this Court in Civil Revision No. 109 of 1995 and the conduct of acquiescence of that jurisdiction by the petitioner he is estopped to raise such a ground for the first time In this Civil Revision, They further argued on merit justifying the factual finding recorded by the appellate Court.