- (1.) The instant appeal has been preferred under Order 43 Rule (1) (u) C. P. C by the appellant being aggrieved against the judgment and decree dated 11. 02. 2011 passed by the Additional District Judge, Special Judge, SC/ ST Act , Room No. 8, Sultanpur in Civil Appeal No. 25 of 2010 whereby the Lower Appellate Court has set aside the judgment and decree passed by the Trial Court and remanded the matter to be decided afresh.
(2.) The submission of learned counsel for the appellant, Sri S. P. Singh, is that the suit for cancellation of a sale deed was filed by the plaintiff-respondent. The plaintiff-respondent had claimed his right on the basis of a registered will dated 22. 07. 1989 said to have been executed by one Sri Mohd. Akhter. Upon the exchange of pleadings, the Trial Court had categorically framed issues which were reflective and comprehensive and the parties understood and were aware of the case they had to meet. The plaintiff-respondent was required to establish their will only then they would have a right to institute the suit for cancellation of sale deed executed in favour of the defendant/appellant. The appellant who was the defendant in the suit had also raised a question of jurisdiction coupled with the fact that the plaintiff-respondent had also instituted a suit for declaration under Section 229-B of the U. P. Z. A. and L. R. Act. It was also submitted that considering the issues which were involved, the parties had full opportunity to lead evidence which they did and after considering the aforesaid, the Trial Court recorded a finding of fact that the plaintiff-respondent had failed to establish the due attestation and execution of the will and that they had no right over the property. With the aforesaid finding by means of the judgment and decree dated 31. 03. 2010, the suit of the plaintiff-respondents was dismissed.
(3.) The lower appellate court without upsetting the aforesaid findings has proposed new issues, which in the opinion of the lower Appellate Court were involved and remanded the mater to be decided afresh which was an erroneous exercise of jurisdiction and contrary to the principles as well as the scope of Order 41 Rule 23 and Rule 25 C. P. C.;