Remand of a suit must comply with specified circumstances; lacking sufficient evidence on record, the appellate court erred in ordering a retrial instead of addressing the appeal on merits.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 is preferred by the appellants assailing the impugned judgment in T.A. No.78 of 2001 of the learned Additional District Judge, FTC (II), Cuttack setting aside the findings of the learned 2^nd Additional Civil Judge (Senior Division), Cuttack in T.S. No.71 of 1988 by judgment and decree dated 17^th July, 2001 remanding the suit for a fresh hearing and disposal on the grounds inter alia that such decision is not legally tenable, hence, therefore, the same isliable to be interfered with and set at naught.

2. In fact, respondent No.1, as one of the plaintiffs, with two others instituted the suit for a preliminary decree of partitionand for delivery of separate possession vis-à-vis the property allotted to them with the pleading on record. The suit property is morefully described in the schedule ‘A’ of the plaint. According to the plaintiffs, respective shares in the suit ‘A’ property stood recorded in the name of defendant Nos. 1 to 3 having two annas of share; Biswanath Singh and Janardan Singh, the father of defendant No.4 combinedly having 6 annas of share; Fakir Singh and Bihari Singh, the father of defendant Nos.5 & 9 respectively having 4 annas of share and such other shares in favour of their father with the RoR finally published in 1977. With such pleading on record, the partition was demanded.

3. On the contrary, it is pleaded that defendant No.2 was first married to Sundarmani Singh and defendant No.1 is their son and plaintiff No.1 is the daughter of Biswanath Singh through defendant No.2, when she married him again after the death of his first wife named above and that Biswawnath Singh sold his interest in plot Nos.12, 17 and 19 to defendant No.1 by registered sale deed dated 8^th November, 1983 and with that sale, defendant No.2 had also sold her interest for the plots and since then, defendant No.1 had become owner in possession of the interest of Biswanath Singh and defendant No.2 and during consolidation operation, defendant No.1 filed objection case to settle the share in plot Nos.12, 17 & 19 on the strength of the registered sale deed, wherein, Biswanath Singh and defendant No.2 admitted to have no interest in respect of Khata No.429 and as a result, the Assistant Consolidation Officer vide order dated 25^th January, 1984 deleted their names and recorded the plots exclusively in his name.

4. In reply, the plaintiffs’ response is that Biswanath Singh and defendant No.2 might have wrongly made the statement before the Consolidation Authority with no interest left with them as the former was blind and the latter was very old by then but in any case, their names were deleted by an order dated 25^th January, 2025. At the same time, it is claimed that Biswanath Singh had transferred Ac.0.01 decimal out of Plot No.45 by a gift deed in favour of plaintiff Nos.2 & 3 and delivered possession of the same to them, which was duly accepted through their father guardian, whereas, plaintiff No.1 succeeded to the balance interest in Schedule ‘A’ property left after the transfer in favour of defendant No.1 and since, no partition was effected in respect thereof, the suit was instituted.

5. The suit was contested by defendant No.1 opposing the claim for partition demanded by the plaintiffs with a written statement filed pleading therein that all the plots jointly recorded in the names of the parties have not been brought to hutch potch, while denying the plea of plaintiff No.1. It has further been pleaded that defen