JUDGMENT :

Heard Ms. Jacinta Zothanmawii, learned counsel for the appellant alongwith Mr. Lalfakawma, learned counsel for the sole respondent.

2. The instant appeal was filed under section 100 of the Civil Procedure Code, 1908 against the impugned Judgment & Order dated 09.11.2021 passed by the Addl. District & Session Judge, Aizawl in RFA No. 7 of 2020 arising out of Heirship Certificate No. 350/2020.

3. The brief facts of the case is that the appellant is a holder of Heirship Certificate No. 350/2020 and inherited the property of his late father PC Lalthlamuana bearing LSC No. CAD-1230/2018 located at Bethlehem Veng, Aizawl and LSC. No. Azl-443/1993 located at Bawngkawn, Aizawl, which was issued by the learned Senior Civil Judge, Aizawl vide Order dated 01.07.2020. This Heirship Certificate was challenged before the First Appellate Court/Addl. District & Session Judge, Aizawl which passed the impugned Order dated 09.11.2021 in RFA No. 7/2020 and had set aside the Order dated 01.07.2020 passed by the learned Senior Civil Judge-III in Heirship Certificate Application No. 350/2020 and the impugned Heirship Certificate No. 350/2020 by the remanding the matter back to the learned Trial Court for fresh decision on merit in accordance with law and by stating that the learned Trial should give chance to the appellant for filing their written objection and proceed and decide with the matter on merits.

4. Aggrieved by this Order, the appellant has filed the instant RSA No. 1 of 2022.

5. On hearing both the parties, the substantial question of law to be decided by this Court is that “whether the Trial Court had erred in law for awarding the Heirship Certificate No.350/2020 to the applicant by not applying the provisions of Section 33 of The Mizo Marriage, Divorce and Inheritance of Property Act, 2014.”

6. Ms. Jacinta Zothanmawii, learned counsel for the appellant submits that the learned Trial Court had issued the Heirship Certificate No. 350/2020 based on the application submitted by the appellant praying for issue of Heirship Certificate, wherein it was clearly stated that the appellant was the sole legal heir of the deceased P.C. Lalthlamuana since he was his son from his first wife and had been looking after the deceased PC Lalthlamuana till his death. That the present respondent has no right to claim any of the properties of the deceased PC Lalthlamuana since they were living separately and did not look after the deceased PC Lalthlamuana. That the learned First Appellate Court had failed to consider this point.

7. The learned counsel further submits that the respondent had failed to file the written statement before the learned Trial Court even though, they were aware of the application for Heirship Certificate submitted by him. Though, there had filed a vakalatnama in the Court, he did not submit any written statement and therefore the learned First Appellate Court should have consider this point before passing the impugned Order dated 09.11.2021. The learned counsel also relied on the judgment of the High Court of Judicature at Madras Dated 17.03.2021 in CRP No.378 of 2021 and High Court of Judicature at Bombay Nagpur Bench, Nagpur in Civil Revision Application No. 91 of 2016.

8. Mr. Lalfakawma, learned counsel for the respondent on the other hand submits that with regards to the substantial question of law to be decided no evidence was adduced by the parties to decide whether the provision of Section 33 of The Mizo Marriage, Divorce and Inheritance of Property Act, 2014 was applied while awarding Heirship Certificate No. 350/2020. That the learned First Appellate Court had rightly passed the Order dated 09.11.2021, by remanding the matter back to the learned Trial Court for fresh decision on merit in accordance with law and by stating that the learned Trial should give chance to the appellant for filing their written objection and proceed and decide with the matter on merits.

9. Having heard the submission made by both the parties, this