NICHOLAS EKKA Vs. LAL EKKA

JUDGEMENT

(1.) This miscellaneous appeal has been preferred against the judgment dated 29th November, 2008, passed by learned Addl. District Judge (F.T.C.), Simdega in connection with Partition Appeal No.11 of 2005 whereby the learned Addl. District Judge has set aside the judgment passed on 30.06.2005 and decree signed on 11.07.2005 in connection with Title Partition Suit No.11 of 2004 and remanded the suit back to the trial Court with a direction to readmit the suit under its original number in the suit register, take additional evidence, if produced and proceed to determine the suit at the earliest, preferably within four months and the parties shall bear their own costs.

(2.) Besides setting aside the impugned judgment and decree the learned Addl. District Judge, by invoking Rule 23 of Order XLI of the Civil Procedure Code, framed following additional issues for proper adjudication of the dispute involved in the suit:

(3.) The plaintiff/respondent no.1 had filed Partition Suit No.11 of 2004 in the Court of learned Sub Judge- I, Simdega in which the defendants, who were brothers, were arrayed as defendant nos.1, 2 and 3 whereas Bhushan Ekka, brother of Lal Ekka was made proforma defendant no.4. During pendency of Partition Suit No.11 of 2004. Joseph Ekka died and vide order dated 08.01.2010 he was substituted by his sons Saurav Ekka and Swapnil Sonal Ekka who were represented through their natural mother Pushpa Ekka, wife of late Joseph Ekka. The plaintiff/respondent no.1 had made out a case in its plaint that Allois Ekka and Stanisless Ekka both sons of Joseph Bhukhan Ekka had acquired landed property jointly in their names by virtue of following three sale deeds at different villages: