ORDER

1. This miscellaneous appeal has been filed against the judgment and decree dated 5.3.2021 passed by learned District Judge, Jabalpur in RCA No. 13/2019 Smt. Sandhya Pasi v. Banti @ Brijesh Pasi and others.

2. The facts of the case are that appellant/plaintiff had filed a civil suit for partition of suit property situated at Mauja Ranipur, No. B. 401, Patwari Halka No. 25, admeasuring 4310 square feet, Khasra No. 82/2, District Jabalpur.

3. The learned Civil Judge at Jabalpur vide Annexure A-6 judgment dated 3.12.2018 decreed the suit by directing that the plaintiff was entitled to 1/5 portion of the suit property and he is entitled to get the suit property divided and obtain the possession of the same.

4. Appellant submits that respondent No. 1 Smt. Sandhya filed an application under Order 41 rule 27 of C.P.C. New grounds were set up, the present appellant opposed the application under Order 41 rule 27 of CPC that no one can be permitted to take advantage of her or his mistake but the learned Ist appellant Court Jabalpur by judgment dated 5.3.2021 remanded the case for recording of the evidence on the issue framed by the Appellate Court which is under challenge in this appeal before this Court.

5. The grounds of the appellant is that the judgment of the learned Ist Appellate Court is wrong. Court should not have framed additional issue and remanded the case for recording of evidence. When the learned lower court in judgment dated 3.12.2018 had already considered all facts, the Ist Appellate court also failed to notice that when application under order 41 rule 27 CPC was dismissed by him because Will is on record of trial Court, then the case cannot be remanded. Lacuna cannot be filled. On these points the learned counsel for the appellant has relied on the case of State of U.P. v. Manbodhan Lal Shrivastava AIR 1957 SC 912, (Constitutional Bench) and Dineshchandra v. Kamlabai, [1997(1) mpwn 78]. Hence, prayer to set aside the judgment and decree dated 5.3.2021 and confirm the judgment of the trial Court dated 3.12.2018.

6. The learned counsel for the respondents supports the order of the Ist Appellate Court.

7. The question before this court is whether the judgment and decree of the learned 1st Appellate Court dated 3.12.2018 is sustainable in the facts and circumstances of the case.

8. This court has gone through the record of both the Courts below. It is evident that both the parties are members of the same family. The learned 1st Appellate Court in Para 12 of the judgment has specifically mentioned that the defendant No. 2 in her written statement in paragraph Nos. 3 and 4 had averred that she had become the owner of the suit property by virtue of the registered Will dated 7.7.2012, then specific issue should have been framed on this point but the learned trial Court did not frame the specific issue regarding Will. The learned Appellate Court in para 10 has referred to the judgment of Hon’ble the High Court Dineshchandra v. Kamlabai, (Supra) and in para 12 of the judgment of the apex Court in State of UP v. Manbodhan Lal Shrivastava (Supra) by analyzing the facts of the case and pleading in that regard and in para 14 has clearly mentioned that the defendant had cross- examined the plaintiff in respect of execution of will, therefore, found no filing of lacuna. In para 15 it is further held that it is a registered Will and it cannot be said that a forged document has been created. The document was already on record of the trial Court and held in para 15 that it was the duty of the counsel to at least advise the client, the illiterate client are not aware with the technicality of the law and that she has to produce the original Will and examine witness and prove the Will. It has been specifically observed that the learned counsel did not do the professional duty in this regard and no party should suffer due to mistake of the counsel. In para 16 the learned 1st Appellate Court has specifically mentioned that to do justice in