SUDAMA DEVI Vs. HIMANSHU SHEKHAR JHA

JUDGEMENT

(1.) This Misc. Appeal is directed against the judgment in reversal dated 8th April, 1999 passed in Title Appeal No. 89 of 1994 arising out of the judgment and decree passed in Title Suit No. 135 of 1987, by learned Sub-Judge 11, Patna.

(2.) The appellants are the plaintiffs. The suit was filed for declaration of title of the plaintiffs over the suit land fully described in Scheduled 1 of the plaint and non-title of the defendants and further for holding that the sale- deed dated 15.10.1986 executed by defendant 1st party in favour of defendant 2nd party is illegal, unauthorised and without any title and that the defendant 2nd party has not acquired any title and their possession over the suit land is that of a trespasser. Further prayer is for passing a decree for recovery of possession and mesne profit and also for permanent injunction restraining the defendants permanently from making any construction over the suit land.

(3.) Plain tiff-appellants succeeded in getting the decree against the defendants with a direction to defendant No.3 to deliver vacant possession of the suit land to them within three months, failing which the plaintiffs were held to be entitled to recover the possession of the same through the process of the Court in appeal vide Title Appeal No.89 of 1994, 2nd Additional Sessions Judge, Patna held that to meet the end of justice, it is necessary to examine the genuineness of the left thumb impression of late Ram Ghulam Mahto on memo of partition (Exhibit-6) between late Judagi Mahto and late Ram Ghulam Mahto. The Court held that the onus lies heavily upon the plaintiffs to firstly and specifically establish that the Exhibit-6 bears thumb impression of both late Judagi Mahto and Late Ram Ghulam Mahto. While setting aside the judgment and decree the lower appellate Court remanded back to the trial Court concerned to afford proper opportunity to the plaintiffs to prove the genuineness of the left thumb impression of late Ram Ghulam Mahto as well on Exhibit-6, with further direction to give its findings on issue Nos. 6 to 8 of the suit and pass judgment and decree therein afresh accordingly. The parties were directed to appear before the Court below on 21-6-1999 on which date the Court below was directed to proceed further as per its convenience. As already stated above, the present appeal is directed against the said judgment of the lower appellate court.