The remand order can only be made if the trial court skips finding on certain issues or decides the suit only on a preliminary issue. The court found that the trial courts had decided the suits on merit and given full opportunity to the parties to lead evidence, making the remand order erroneous.

JUDGMENT :

1. The appellants in both these appeals have challenged the common judgment and order dated 18.09.2015 passed by the learned Principal District Judge, Jalgaon (hereinafter referred to as “the learned lower Court”) in Regular Civil Appeal No. 27/2002 arising out of judgment and decree dated 23.11.2001 passed by the learned 4th Joint Civil Judge (Senior Division), Jalgaon in Regular Civil Suit No.62/1990 and Regular Civil Appeal No. 137 of 2014 arising out of judgment and decree dated 28.06.1995 passed by the learned Civil Judge (Senior Division), Jalgaon in Special Civil Suit No. 159/1990. Under the impugned common judgment, the learned lower Court has remanded both the aforesaid civil suits for deciding afresh by common judgment to the Court of Civil Judge (Senior Division), Jalgaon.

2. The background facts leading to these appeals are as under :

One Pralhad had fled Misc. Civil Application No.102/1987 and sought permission from the concerned Court to sue as an indigent person. The application was allowed and his suit was registered as Special Civil Suit No.159/1990. In the said suit, Pralhad had claimed relief of partition and separate possession in respect of the suit property i.e. CTS No. 2680/B2 admeasuring 25 ft east-west and 65 ft south-north, alongwith a four mill thereon, with two electric meters. Pralhad had made his father Sitaram, mother Shantabai and brothers Pandurang and Vitthal as party defendants. According to Pralhad, the suit property was joint family property since his father Sitaram, after disposing the agricultural land and houses situated at Kingaon which came to his share in family partition among his brothers, purchased the same on 29.06.1971 for consideration of Rs. 11,200/-. Pralhad had claimed one-fifth share in the suit property as he was driven out from the house by Sitatam.

3. During the pendency of the aforesaid suit, Sitaram died, but defendant Nos.3 an 4 Pandurang and Vitthal, brothers of Pralhad admitted the suit claim. However, defendant No.2 Shantabai i.e. the mother of Pralhad resisted the suit by contending that the suit property was self acquired property of her deceased husband Sitaram. The trial Court, after framing the issues and after the parties led evidence, held that the suit property was joint family propertyand accordingly determined one-fourth share of plaintiff Pralhad in it. The said judgment and decree dated 28.06.1995 was challenged by original defendant No.2 Shantabai, by fling First Appeal No. 97 of 1996 before this Court, but on account of enhanced pecuniary jurisdiction, the appeal was transferred to the lower Court under a new number as Regular Civil Appeal No. 137/2014.

4. During the pendency of the aforesaid suit, Sunil and Jitendra, who are the sons of Pralhad, had also fled separate suit bearing Regular Civil Suit No. 62/1990 on 03.02.1990 against their father Pralhad, paternal uncles Pandurang and Vitthal and grandmother Shantabai for declaration that they be declared as owner of the suit property by virtue of Will dated 24.05.1988 purportedly executed by their grandfather Sitaram. According to them, since Sitaram had bequeathed the suit property to them being his self acquired property, their names ought to have been entered in the record of rights of the suit property as owners. Pralhad and his brothers Pandurang and Vitthal had resisted the said suit by contending that the suit property was joint family property, and therefore, Sitaram was not having any right to bequeath the same to Sunil and Jitendra under a Will. The concerned trial Court, after framing the issues and giving opportunity to contesting parties to lead evidence, dismissed the suit by observing that the suit property was joint family property, and therefore, Sitaram was not having any right to bequeath the same to Jitendra and Sunil under a Will. Thus, Sunil, Jitendra and Shantabai had