JUDGMENT :

Anil Kshetarpal, J.

CM-20914-CII-2024

1. For the reasons stated in the application, the same is allowed and delay of four days in filing the appeal is condoned.

SAO-47-2024

2. This second appeal has been filed by the defendants against the First Appellate Court’s Order remitting the matter back to the Trial Court. Pursuant to supply of advance copy of the appeal, Mr. Amandeep Tiwana, Advocate, has entered appearance on behalf of the contesting respondent No. 1 (plaintiff No. 2) who filed the first appeal.

3. The plaintiffs filed a suit for declaration to the effect that they are the owners in possession of the suit land measuring 3 bighas 3 biswas situated in village Sidhuwal, Tehsil and District Patiala, with consequential relief of permanent injunction restraining the defendants from interfering in their possession in any manner whatsoever.

4. The plaintiffs claimed that the suit land was owned by Smt. Basanti widow of Sadhu Singh and thereafter, her daughter, namely Smt. Jeeto succeeded to the property. Smt. Jeeto sold the property to plaintiffs No. 1 and 2 and Chanan Khan, predecessor-in-interest of plaintiffs No. 3 to 5 vide sale deed dated 05.01.1996 and the possession was delivered to plaintiffs No. 1, 2 and Channan Khan. The defendants contested the suit.

5. Upon appreciation of evidence, the trial Court has culled out the following issues:

“1. Whether the plaintiff is entitled to relief of declaration as prayed for? OPP

2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP

3. Whether the suit of the plaintiff is false and frivolous? OPD

4. Relief.”

6. After the parties were permitted to lead evidence, the trial Court partly decreed the suit while granting declaration that the plaintiffs are the owners in possession of the land measuring 3 bighas 3 biswas. During pendency of the suit, an application for culling out the additional issues was filed which was dismissed. Even the review application filed by the plaintiffs was dismissed. Ultimately, the suit was partly decreed on 31.10.2014. Plaintiff No. 2 filed first appeal. During the pendency of the first appeal, plaintiff No. 2 filed an application for framing the additional issues. The First Appellate Court has allowed the appeal and remitted the matter back to the Trial Court for fresh decision.

7. Heard the learned counsel representing the parties at length and with their able assistance, perused the paper-book.

8. The learned counsel representing the plaintiff No. 2, the only contesting respondent, has produced a certified copy of a separate order passed by the First Appellate Court while allowing his application for framing additional issues. The concluding part of the order reads as under:

“So far the case laws upon which counsel for respondent put reliance are totally distinguishable from the facts of the present case and keeping in view above mentioned detailed discussion of mine as well as in the light of case laws referred above upon which learned counsel for applicant/appellant put reliance, the application in hand carries weight in it and same is hereby allowed and the learned trial court is directed to frame additional issue in respect of pleadings of the plaintiff/applicant contained in para no. 13 as well as prayer clause regarding relief of possession and after framing of the same to provide two effective opportunities to each of the parties to lead their respective evidence upon that issue and thereafter to decide the case afresh as per law.”

9. With the consent of the learned counsel representing the parties, the present appeal has been taken up for final disposal.

10. The learned counsel representing the appellant contends that the First Appellate Court was not required to remit the matter back to the Trial Court after setting aside the impugned judgment and decree. While referring to Order XLI Rule 25 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), he submits that the Appellate Court can seek rep