MANGIYA Vs. CHUNNILAL

JUDGEMENT

(1.) This appeal under order XLIII, Rule 1(u) CPC is directed against the judgment dated 23.09.2017 passed by the District Judge, Jalore ('the first appellate court'), whereby the appeal filed by the respondent-plaintiff has been partly allowed and the judgment and decree dated 18.10.2011 passed by the Additional Civil Judge (Sr. Division) No.2, Jalore ('the trial court') has been set aside and the matter has been remanded back to the trial court.

(2.) The respondent-plaintiff filed a suit for possession and permanent injunction based on patta dated 02.07.1981 issued by Gram Panchayat, Leta in his favour. It was alleged that after taking possession of the disputed plot, he placed fencing and a gate around it, took permission dated 01.02.1985 from the Municipal Board, Jalore, however, only the foundation could be filled-up and rest of the construction could not take place. On account of physical reasons, the plaintiff could not attend the disputed plot and the defendants in the meanwhile, trespassed over the plot and raised construction. Based on the said submissions, permanent injunction was sought alongwith possession and mesne profit.

(3.) The suit was contested by the defendants-appellants claiming that the plot belonged to their brother Dhaniya, in whose favour patta was issued on 20.01.1973 by Tehsildar, Jalore without any charges, Dhaniya constructed house and they received the same in succession by way of family settlement the plot in question alongwith the house came to the share of Bhoma, who was living there alongwith his family. It was prayed that the suit be dismissed.