PALLABGUNJAN SATPATHY Vs. BANCHHA @ BANCHHANIDHI PALEI

JUDGEMENT

(1.) This appeal is against the order of remand dated 16.2.2002 passed by the learned District Judge, Keonjhar in T.A. No.20 of 1998 arising out of judgment and decree dated 28.3.1998 and 7.4.1998, respectively, passed by the learned Civil Judge (Senior Division), Champua in T.S. No.28 of 1996.

(2.) It is unnecessary to state the pleadings of the parties in the suit. The present appellants are the L.Rs. of the original plaintiff who filed the suit for declaration of right, title and interest and confirmation of possession over the suit schedule 'A' land appertaining to Plot No.86/835 under Khata No.60 corresponding to Sabik Plot No.399/1/911 under Sabik Khata No.52/41 of Mouza Joda as well as suit schedule 'B' land in Hal Khata No.60, Plot No.88 corresponding to Sabik Khata No.19, Plot No.115 of the same mouza, with further relief that in case of dispossession during pendency of the suit, recovery of possession should be made through the process of court. Respondent No.1 who is defendant No.3 in the suit contested the case and others were set ex parte. Learned trial court framed issues, recorded evidence adduced by the contesting parties and assessing the evidence placed before it decreed the suit. Respondent No.1 herein preferred the First Appeal before the learned District Judge. During pendency of the First Appeal a petition under Order 41 Rule 27 CPC was filed by the appellant in the First Appeal which was allowed by the learned lower appellate court vide order dated 4.2.2002. Certified copy of some public documents were marked as Exts. L, M and N. On the same date argument was heard and on 16.2.2002 the impugned judgment/ order of remand was passed. Learned appellate court has remanded the suit for disposal afresh, mostly on the ground that the identity of the suit land being under challenge the dispute would have been resolved by demarcation of the suit land by Civil Court Amin Commissioner, and the learned trial court ought to have framed an issue as to whether the Sabik and Hal Plot numbers given in the plaint schedule 'A' land correlates with each other. For that reason the learned lower appellate court while remanding the suit for fresh disposal has directed the learned trial court to frame a specific issue as to whether suit 'A' schedule land correlates to the Sabik and Hal plot numbers given in plaint 'A' schedule with further direction to take additional evidence on that issue. It is also observed by the learned appellate court that either of the party may apply to the trial court for demarcation/identification of the suit 'A' schedule land.

(3.) This order of remand is under challenge in this appeal on the following grounds: