ANIL KUMAR MAHAJAN Vs. DHEMPHA RAM

JUDGEMENT

(1.) The contesting respondents herein, who were plaintiffs before the learned trial court, had filed a suit for declaration and perpetual prohibitory injunction against the appellant and proforma respondent No. 4 herein, Smt. Jaifli, who died during pendency of the appeal before this Court and as such her name was ordered to be deleted vide order dated 29.10.2010, passed in CMP No. 944 of 2011, being the defendants, which was dismissed vide judgment dated 12.01.2004. However, in appeal, the learned First Appellate Court, after having come to the conclusion that out of the pleadings of the parties the following two additional issues arose which the leaned trial court had omitted to frame: 10 -C Whether deceased Piyundi was unmarried and had died issueless and his estate stood inherited by his brother Moti who was father of the plaintiffs? If so its effect. OPP. 10 -D Whether deceased Piyundi was married to defendant No. 1 and after his death his estate stood inherited by her? If so its effect. OPD -1"

(2.) Accordingly, the appeal was allowed and the aforesaid judgment dated 12.01.2004, passed by the learned trial court, was set -aside and the case remanded with the following direction: to afford opportunities of leading evidence to the parties on the additional issues framed by this court and then decide the case afresh after giving reasoned findings on all the issues framed in this case in accordance with law.

(3.) However, the impugned judgment dated 27.11.2008, passed by the learned First Appellate Court, which amounts wholesale remand, is in derogation to the provisions of Order 41 Rule 25 of the Code of Civil Procedure (in short ˜CPC), as has been held by this Court in Nand Lal vs. Sewak and others, 2005 (3) Shimla Law Cases 340 and thus cannot be sustained.