PRAHLAD RAI DHAND Vs. SAVITRI DEVI

JUDGEMENT

(1.) This civil misc. appeal under Order 43, Rule 1(u) of the Code of Civil Procedure, 1908 is directed against the order dated 10-12-1998 of the learned Addl. District and Sessions Judge No. 1, Sikar whereby the Civil Regular Appeal No. 25/95 filed by defendants was allowed and after setting aside the judgment and decree dated 14-9-1995 passed by learned Civil Judge (SD) Dataramgarh in Civil Original Suit No.63/84 (129/93), the case was remanded back to the trial Court for fresh decision.

(2.) Briefly stated, the relevant facts necessary for its disposal are that the plaintiff, appellant herein, instituted a civil suit in the trial Court for cancellation of sale-deed dated 24-1-1980 with the averments that the suit property described in para 2 of the plaint was in the ownership and possession of his father since Fagun Sudi 4 Sanwat 1990 and thereafter in his ownership and possession. Mst. Dhapu Devi wife of Late Shri Chandra Bhan Dhand who had no concern with the suit property sold it to her daughters Mst. Manohari Devi and Mst. Savitri Devi through a registered sale-deed dated 29-1-1980 without any consideration and knowing fully well that the same was surrendered by Late Shri Chandra Bhan Dhand in favour of father of the plaintiff through surrender-deed Ex. 2A and after his death plaintiffs have been in adverse possession thereof. The sale-deed was, therefore, void ab initio which be cancelled. The defendants denied averments in their written statement pleading further that through a family settlement arrived at on 30-12-1943 between two sons of Late Shri Kanhaiya Lal Dhand namely Late Shri Deen Dayal and Late Shri Chandra Bhan, the suit property came in the share of Late Shri Chandra Bhan and after his death Mst. Dhapu Devi, his wife, became its owner. The trial Court after framing six issues stemming from the pleadings of the parties, taking oral and documentary evidence of the parties and affording an opportunity of hearing to the parties, decreed the suit on 14-9-1995 with costs. During the pendency of the appeal preferred from the aforesaid judgment and decree by the defendants, the defendants moved an application under Order 14, Rule 5 r/w Section 107, C.P.C. for framing of issue as under:- (Vernacular matter omitted)

(3.) The plaintiff opposed the aforesaid application by filing its reply. The learned first appellate Court allowed the application, framed the aforesaid additional issue and remanded the case to the trial Court with the direction to decide the suit afresh after taking evidence of the parties.