BINDROO Vs. BADRI NATH

JUDGEMENT

(1.) "Whether an appeal lies against an order of appellate Court passed under Order 41, Rule 23 or 23-A, C.P.C. for remanding a case for re-trial to the trial Court after setting aside its decree, as a matter of right on a question of fact as well as question of law?"

(2.) The defendant-appellant has filed this Civil Second Appeal against the judgment of learned 2nd Addl. District Judge Jammu dated 30-4-2005 whereby the learned District Judge has set aside the judgment and decree of the trial Court dated 22-1-2003 and remanded the suit back for re-trial after framing issues afresh as per pleadings of the parties. Since the 1st appellate Court has not dismissed or decreed the suit of the plaintiff its judgment cannot be treated as decree and therefore civil second appeal u/S. 100, C.P.C. does not lie. Faced with such situation learned counsel for the appellant submits that his appeal be treated to be an appeal under Order 43, Rule l(u), CPC and he submits that the appeal is maintainable under the said provision of law as a matter of right.

(3.) The facts of the case briefly stated are that plaintiff-respondent herein filed a civil suit against the defendant-appellant for permanent prohibitory injunction for restraining him from taking compensation of the suit land from the army on the allegation that he was in possession of the land in question as a tenant under the defendant at a monthly rental of Rs. 200/- since 1969; that in view of the provisions of Agrarian Reforms Act the defendant could not have got back the possession of the said land from him so he agreed to sell the land to him for a consideration of Rs. 5000/-; the plaintiff paid Rs. 900/- as part consideration to him in the year 1971 and rest of the amount on 6-2-1979. It is also the case of the plaintiff that the defendant executed an agreement to sell in his favour in which he has admitted the possession of the plaintiff over the suit land.Further case of the plaintiff is that in December, 1992 the army took the land in question under Requisition and Acquisition of Immovable Property Act from the plaintiff so he is entitled to receive compensation from the army.