The main legal point established in the judgment is the court's affirmation of the remand of the matter for fresh consideration to the trial Court, emphasizing the importance of complete adjudication of the dispute between the parties.

JUDGMENT :

1. This Court while issuing notice in the second appeal has framed the following substantial questions of law :

i) Whether the First Appellate Court was right in appreciating the evidence of defendant No. 2 in respect of Gat No. 42 by holding it as a self-acquired property of defendant No. 2?

ii) Whether the First Appellate Court was right in not remanding the matter in respect of Gat No. 42?:

2. In this second appeal, the plaintiff has challenged the decision given by the first appellate Court so far as the nature of Gat No. 42 is concerned. It is one of the suit land. The plaintiff considered it as a joint family property, whereas defendant No. 2- Pandurang considered it as his self-acquired property acquired by availing a loan from the society. Whereas, the first appellate Court considered it as self acquired property.

3. Whereas, the plaintiff has preferred this ‘appeal from an order’ against the direction given in the impugned judgment dated 11-2-2021 passed by the first appellate Court. By the said judgment, the suit was remanded and the trial Court was directed to conduct a fresh enquiry. Defendant No. 2-Pandurang was permitted to adduce evidence on the basis of the documents filed before the first appellate Court as per Exh.27. While passing the order of remand, the first appellate Court excluded Gat No. 42 from the scope of enquiry to be conducted by the trial Court. In this appeal from an order, the Court has issued the notice to the respondents.

4. All the respondents have appeared in both the proceedings through learned Advocate Shri A.P. Thakre. Considering the scope of enquiry of both these proceedings, they are taken up for final hearing by consent. In view of that, the second appeal and the appeal against an order are admitted and taken up for final hearing. They have waived the notice too.

5. The following points arise for my determination :

S.N. Points Findings

(i) Whether the first appellate Court was right in appreciating the evidence of defendant No. 2 in respect of Gat No. 42 by holding it as a self acquired property of defendant No. 2? In the negative (was not right)

(ii) Whether the first appellate Court was right in not remanding the matter in respect of Gat No. 42? In the negative (was not right)

(iii) Whether the first appellate Court was right in remanding the matter for fresh consideration to the trial Court? In the affirmative

(iv) What order? As per final order SUIT

6. The plaintiff has filed the suit for partition. Defendant Nos. 1 to 3 are his brothers, whereas defendant No. 4 is his married sister. He has sought for partition in respect of four lands described in the schedule. Both the parties have adduced evidence before the trial Court. The plaintiff has examined himself and on behalf of defendant Nos. 2 and 3, defendant-Pandurang entered into the witness box. So also, they have examined one Lemon Wasudeorao Balpande and one Maroti Domaji Waghade. Defendant No. 4 also entered into the witness box.

7. After appreciating the evidence, the trial Court came to the conclusion that the suit properties including Gat No. 42 are the joint family properties. The trial Court refused to consider Gat No. 42 as self-acquired property of defendant No. 2. So also, the trial Court has refused to accept the objection about maintainability of the suit on the ground of partial partition.

8. Defendant No. 2 and legal heirs of deceased defendant No. 3-Dilip preferred R.C.A. No. 724/2016. The plaintiff, defendant No. 1 and defendant No. 4 are the respondents therein.

FIRST APPEAL

9. Before the first appellate Court, defendant No. 2- Pandurang sought permission to produce certain documents. They are as per the application at Exh.27. It consists of

(a) suit notice given by the plaintiff (there is no mention of Gat No. 42 in that suit notice and contention of defendant No. 2 is that the plaintiff was aware that the suit land is a self-acquired property of defendant No. 2) (b) one unregistered partition-de