This miscellaneous appeal is by the defendant against order of remand dated 2/8/1985 passed by the District Judge, Sagar, whereby reversing the judgment and decree passed by the Civil Judge, Class II Khurai, wherein it was held that the suit was barred by limitation and could not he proceeded against the defendant.

The suit was filed in the trial Court by the respondent/plaintiff claiming half share in the joint family property on the averments that she being the second wife of late Mohanlal the father of appellant-defendant Kanchhedi was entitled to it. It was stated that on household matters the defendant/appellant used to pick up quarrel with the plaintiff/respondent every now and then. Lastly, in the month of June 1979, the appellant-defendant turned her out of the house. On the plaintiff making a demand of her half share in the property, the appellant/defendant refused to give the share. On enquiries made by her she came to know that the defendant/appellant got the land mutated solely in his name whereas he had been telling to the plaintiff/respondent that the land was mutated in the name of both (the plaintiff and the defendant). With this statement, the plaintiff prayed that it he declared that she is entitled to half share in the family property and was entitled to seek partition and possession thereof.

In the written statement, the defendant/appellant denied the suit allegations and further came out with a case that the plaintiff/respondent was not the wife of late Mohanlal and had no right in the family property.

The learned trial Court framed issues and dismissed the suit on the ground that the suit was barred by limitation as was not filed within 3 years from the date of cause of action under Article 58 of the Limitation Act.

On appeal being preferred by the respondent/plaintiff, the lower appellate Court reversed the judgment and decree passed by the trial Court remanding the case for trial of all the issues on recording evidence and also with a direction to frame additional issues on the averments made by the parties. The only point raised before this Court by the appellant is that the suit could not proceed being barred by limitation under Article 58 of the Limitation Act. As such, the first appellate Court erred in law in setting aside the judgment and decree passed by the trial Court by remanding the case for the trial of the suit. From the suit allegations, it is clear that the suit, as framed by the plaintiff, is a suit for partition. The declaration is only a consequence of the suit. The plaintiff/respondent stated in para 3 of her plaint that she was entitled to half share in the family property owned by her husband Mohanlal which fell to the plaintiff and the defendant both after the death of Mohanlal and was, as such, entitled to its half share. Her right in the property, according to the suit allegations was never denied. It was only the half share which was refused by the defendant to be given to her. The plaintiff/respondent has claimed the partition with the prayer that she be declared entitled to half share of the disputed property. The cause of action as shown by the plaintiff arose in the month of July 1982 when, after serving a legal notice, she was denied her right and the suit was filed on 31.8.1992. Therefore, the suit could not even be said to be barred under Article 58 of the Limitation Act. The learned first appellate Court has rightly found the suit to be within limitation and I do not find any illegality or perversity in the order of remand passed by the learned lower appellate Court. The issue as framed about the limitation requires evidence and further the averments of the parties are not covered by the issues as framed by the trial Court. Therefore, the trial Court has rightly been directed to frame additional issues on the averments of the parties and to decide the suit after recording evidence of both the parties.

In view of the above discussion, the