AMULYA DAS Vs. SRIKANTA DAS AND OTHERS

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree dated 30.11.2011 passed in R.F.A No. 95/109 of 2009/2005 by the learned Additional District Judge, Balasore setting aside the final decree dated 04.08.2005 passed by the learned Civil Judge (Sr. Division), Balasore in C.S. No. 242 of 1991.

(2.) The facts necessary for the purpose of this appeal are as under:-

(3.) Learned counsel for the appellant submits that the Commissioner having made the division of the properties described in Schedule-Ga of the plaint in accordance with the preliminary decree as passed which has attained its finality, the lower appellate court was justified in setting aside the said final decree. In course of his submission, he of course is one on the point that in the preliminary decree the trial court has simply held the plaintiff's entitlement to half share and â ...™th share of the defendant No. 1 over the Schedule-Ga property and as regard shares of others and rest share of â ... "rd, the preliminary decree is silent. He also fairly submits that in the appeal taking into consideration the infirmities in the preliminary decree, the lower appellate court while remitting the matter to the trial court for taking up the proceeding in accordance with law, should have given more clarifications. Thus here he submits that without those clarifications, it is likely that the trial court may again commit some errors and for the same, the lis instead of coming to an end may get protracted which would be to the great sufferance of the defendant No. 1. Learned counsel for the respondents supports the judgment passed by the lower appellate court in stating that in view of the infirmities in the preliminary decree and consequentially in the final decree, the lower appellate court had no other option but to set aside the final decree which needs no interference.