VIDHYA DEVI Vs. RADHEY SHYAM

JUDGEMENT

(1.) The instant appeal has been filed by the defendants-appellants (for short 'the defendants') under Order 43, Rule 1 (u) CPC against the judgment dtd. 7/3/2014 passed by the Additional District Judge, Gangapur City in Civil Regular Appeal No. 38/2009, (for short 'the appellate court'), whereby the appeal filed by the plaintiff-respondent (for short 'the plaintiff') has been partly allowed, judgment and decree dtd. 25/8/2009 passed by the trial court dismissing the plaintiff's suit for permanent injunction has been set aside and the matter has been remanded to the trial court to decide the suit afresh.

(2.) Learned counsel for the defendants submits that the appellate court has wrongly set-aside the judgment passed by the trial court and wrongly remanded the matter to the trial court to decide the suit afresh. Learned counsel for the defendants further submits that the order of the appellate court is against the provisions of under Order 41, Rule 23, 23-A and Rule 25 CPC. So, judgment passed by the appellate court may be set-aside. Learned counsel for the defendants also submits that the trial court had rightly decided the issue Nos.1, 7 and 9 regarding declaration of owner-ship. Learned counsel for the defendants further submits that on the basis of pleadings, trial court had framed issues and it is well settled proposition of law that in injunction suit, finding regarding owner-ship would not be re-adjudicated in subsequent regular suit for declaration. Learned counsel for the defendants also submits that the trial court while recording the evidence, reserved the finding on objections regarding admissibility of the documents Ex.A-20 and A-48 and directed that admissibility of these documents would be decided at the time of final arguments. Learned counsel for the defendants also submits that there was no preliminary point at the time of deciding the suit, so, the appellate Court had committed an error while remanding the matter to the trial court to decide it afresh. Learned counsel for the defendants also submits that the parties had adduced their evidence before the trial court, so the trial court had decided the matter on merits after considering evidences of the parties. So, the judgment passed by the appellate court may be set-aside.

(3.) Learned counsel for the defendants has placed reliance upon the following judgments:-(1) Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs and Ors. reported in AIR 2008 SC 2033; (2) Khatoon Dukhtar (D) thro Lrs. v. Smt. Naraini Devi & Ors. reported in 2013 (3) W.L.C. 616; (3) Yamuna Nagar Improvement Trust v. Khariati Lal reported in AIR 2005 SC 2245; (4) Ashwinkumar K.Patel v. Upendra J.Patel & Ors. reported in AIR 1999 SC 1125; (5) Shyamal Kumar Roy v. Sushil Kumar Agarwal reported in (2006) SCC 331.