MAL CHAND Vs. BASANT PRAKASH

JUDGEMENT

(1.) THIS revision application is directed against the order of the Additional District Judge, Churu dated 16 -11 -1972 whereby he set aside the judgment and decree of the Civil Judge, Churu dated 25 -3 -1970 and remanded the case back to him after framing an Additional issue for fresh decision on merits.

(2.) A preliminary objection has been raised that this revision application is not maintainable as an appeal lies against an order of remand made under Order 41 Rule 23 CPC as amended in Rajasthan. The learned Counsel for the petitioners in reply submits that this revision application be treated as an appeal against the order of the Additional District Judge, Churu dated 16 -11 -1972. I uphold the preliminary objection and treat this revision application as an appeal.

(3.) I have heard learned Counsel for the parties and one through the record of the case. The plaintiffs in this suit have claimed eviction and arrears of rent on the basis of the rent note Ex.2 Ordinarily therefofe, the title of the landlord to the suit premises in respect of which rent note has been executed by the defendant cannot be enquired into. Again it will not make any difference whether the document Ex. 1 is a sale deed or a mortgage by conditional sale. In either case the vendor or the mortgagor may execute a rent note in favour of the vendee or the mortgagee as the case may be. In this view of the matter it will be wholly un -necessary to decide in this case whether the document Ex. 1 is a sale deed or a mortgage by conditional sale. The lower appellate court was wholly un -justified in framing the issue and remanding the case back to the trial court for fresh decision.