PARI Vs. OM PRAKASH

JUDGEMENT

(1.) THE defendants-appellants have challenged in order dated 14. 8. 05 passed by the Addl. District Judge No. 2, Bundi, whereby the judgment and decree dated 25. 2. 97 passed by the Judicial Magistrate, Bundi in Suit No. 453/86 was reversed and the case was remanded back to the trial Court.

(2.) THE brief facts of the case are that the respondents (hereinafter to be referred as `the plaintiffs) filed a suit against the appellants (hereinafter to referred as `the defendants' ). According to the plaint, the plaintiff claimed that on 12. 3. 81 a will was executed by Mst. Pari in favour of the plaintiff. But even earlier the plaintiff was in possession of the house in dispute. But, the defendants took forceful possession of the house. THErefore, he filed a suit for permanent injunction and also sought a decree in the nature of mandatory injunction. He also prayed that the possession of the house, forcefully taken by the defendants, should be returned to him. THE defendants, in their written statement, denied the plaintiff's possession and ownership. According to them Mst. Pari was not plaintiff's grandmother. Infact, the house in dispute was self-acquired by Gomda. Mst. Pari was only wife of Gomda through the `nata' tradition. THE defendant further claimed that in Sumvat 2029 a will was executed by Gomda in their favour and his last will was executed in favour of defendant No. 2. THErefore, the will claimed by the plaintiff has no value. THEy also raised the plea of adverse possession. In order to prove his case the plaintiff examined five witnesses. THE defendants on the other hand examined seven witnesses. Considering the pleadings of the parties, the trial Court framed seven issues which are as under:- ***

(3.) SECTION 107 CPC Reads as under:- ``107. Powers of Appellate Court- (1) Subject to such conditions and limitations as may be prescribed an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case. (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. ''