PRABHU RAM Vs. BHANWAR LAL

JUDGEMENT

(1.) THIS appeal is directed against the order dtd.27.7.2009 passed by the learned court below in an appeal filed by the Plaintiff under Section 96 Code of Civil Procedure whereby the judgment and decree dtd.9.12.2003 rejecting the suit of the Plaintiff, was set aside and the learned appellate Court remanded the matter back to the learned trial Court for re -deciding issues No. 1 and 2 after taking fresh evidence by summoning report/ appointment of Commissioner under Order 26 Rule 9 Code of Civil Procedure with respect to determining the exact area of mines of the Plaintiff and the Defendant situated at khasra No. 18.

(2.) THE learned court below giving detailed reasons for said remand found that the Plaintiff as well as Defendant failed to establish their respective limits of mining area and therefore, the report from Mining Engineer, Makrana and Tehsildar ought to have been summoned by the court below or the Commissioner should be appointed under Order 26 Rule 9 Code of Civil Procedure who could determine the said limits and issues No. 1 and 2 be decided a fresh after the said fresh evidence is taken.

(3.) THE learned Counsel for the Respondent - Plaintiff submitted that since in the appeal filed by the Plaintiff himself, learned appellate Court had come to the conclusion that redetermination of limits of mines of both the parties is required to be made before deciding the suit for mandatory and permanent injunction. The order passed by the learned appellate Court for taking fresh evidence for redetermining the issues No. 1 and 2 is limited to the extent of remand for deciding issue No. 1 and 2 and if the words used that the judgment and decree dtd.9.12.2003 is set aside as used in the impugned order, it does not affect the rights of the parties, as far as other issues are concerned and the learned trial Court is required to decide issues No. 1 and 2 only a fresh.