DURYODHAN MOHAPATRA Vs. BHARAT MOHAPATRA AND ORS.

JUDGEMENT

(1.) DURYODHAN Mahapatra, Defendant No. 1 in the trial Court and Respondent No. 1, in the lower appellate Court, has filed this appeal under Order 43, Rule 1(4), Code of Civil Procedure (for short 'C.P.C.'), challenging the order of the lower appellate Court remanding the case to the trial Court. With the direction to flame was specific issues, give opportunity to death the sides to adduct additional evidence, if any on the said issues and to decide the suit afresh after hearing the parties.

(2.) THE Respondents filed the suit for partition of the suit properties and for separate allotment of, (sic) decimals of land out of the 2/3rd interest of the Plaintiffs to Defendants 2, 3 and 4. The suit property was the homestead land of one Kusuna Mohapatra. The case of the Plaintiffs, shortly put, was that one Kusuna Mohapatra had three sons, viz. Naran, Gangadhar and Gananatha. The three brothers were separated and were possessing their respective interests in the suit property before the current settlement and therefore separate date of possession of each branch had been noted in the record -of -rights. Of the three sons of Kusuna, Naran died first leaving his son Defendant No. 1. Thereafter Gangadhar died married. The Plaintiffs are the sons of Gananath and the Defendant No. 1 is the son of Naran. On the death of Gangadhar, his property devolved upon Gananath, the surviving brother. Out of the said suit property, an area of Ac. 0.02 decimals was sold to Defendant No. 2 by Gananath by a registered sale deed dated 7 -4 -1936. The suit property having been partitioned by metes and bounds; the Plaintiffs and Defendants No. 1 were in possession of the same jointly. The request for amiable partition by the Plaintiffs having been turned down be Defendant No. 1, the Plaintiffs filed the suit for the aforementioned reliefs.

(3.) ON appeal by the Plaintiffs, as it appears from the judgment of the lower appellate Court, it was urged on their behalf that the findings of the lower Court that Kusuna had two wives; that Naran and Gangadhar Were born to his first wife, Sita and Gananath was born to his second wife, Jasomanti, and that Naran and Gangadhar reunited after their partition were vitiated due to absence of I specific issues. It was further urged on their behalf that the trial Court erroneously held that there was partition between the parties, though the suit lands were jointly possessed by both the parties, without proper appreciation of the evidence on record. As the discussions in the judgment of the lower Appellant Court indicates the Court considered the findings arrived at by the triad Court on the aforementioned questions on their merits and came to hold that the trill Court had not approached the case in its proper perspective and had not kept in mind the correct legal position. The Court also held that in the absence of specific issues on the two questions which are materiel and vital for proper adjudication of the controversy in the case, attention of the parties was not drawn to the questions and proper and sufficient evidence not led on these question. On these findings the appellate Court felt that it would be just and, proper to reamed the case to the trial Court for fresh consideration with the direction to frame the two specific issues noticed earlier, to give opportunity to both the parties to lead evidence regarding these issues to consider the existing evidence and fresh evidence, if any, led by the parties and dispose of the suit in accordance with law.