S.P.PANDEY,J. - (1.) THIS is first appeal from order under Section 331 of the U.P. ZA and LR Act (hereinafter referred to as to Act), preferred against the judgment and order, dated 19-6-1995, passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 90/25 of 1993-94/Jhansi, allowing the same and remanding the case to the learned trial Court, for decision afresh, on merits, according to law, after setting aside its orders dated 31-3-1994/11-5-1994 and 16-3-94, passed in a case under Section 176 of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant FAFO are that the plaintiff, Khushali instituted a suit under Section176 of the Act against the defendants, Panna etc. for division of holding in which the preliminary decree was passed on 5-5-1993 and the lekhpal concerned was asked to file lots accordingly, fixing 15-5-1993. The final decree was passed by the learned trial Court on 31-3-1994 and the plaintiff went up in appeal before the learned Additional Commissioner, who has passed the impugned order, dated 19-6-1995 and therefore, it is against this order that the instant FAFO has been preferred by a Lala Ram before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. Assailing the impugned order, the bone of contentions of the learned Counsel for the appellant inter alia, in a nut shell, are, firstly, that since the final decree was passed by the learned trial Court with the consent of the parties, concerned, after Cross-examining the Lekhpal concerned no question of any such examination arises and as such, it is rather incorrect to say that no opportunity was afforded to the plaintiff to cross- examine the lekhpal, concerned; secondly, that since the lots were prepared on the basis of its valuation and allotment of equal land, irrigated and un-irrigated etc., the observation of the learned Additional Commissioner to the contrary, is incorrect and the remand of the case is not justified in the facts and circumstances of the instant case as well as evidence on record and as such, the impugned order cannot, at any stretch of imagination, be allowed to sustain and this FAFO very richly deserves to the allowed in toto. The learned Counsel for the respondent, in reply urged that in the facts and circumstances of the instant case as well as the evidence on record, the learned Additional Commissioner was perfectly justified in remanding the case to the learned trial Court for decision, a fresh on merits, according to law, as no proper opportunity to cross-examine the lekhpal, concerned was afforded to the plaintiff and therefore, this FAFO very richly deserves dismissal outright.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record on file. As a matter of fact, the case was remanded to the learned trial Court for decision, afresh, on merits, according to law on the ground of the lots, being not prepared with the consent of the parties, concerned, as their signatures do not find place on it, contrary to the claim of the lekhpal, concerned. It has also been observed by the learned Additional Commissioner that no proper and adequate opportunity was afforded to the plaintiff by the learned trial Court appellant in respect of the objections, raised by him. The lots were also found not to be prepared as per rules, on the subject and therefore, I, without commenting upon the merits of the case, am fully convinced that the learned Additional Commissioner in the facts and circumstances of the instant case as well as the evidence on record, was perfectly justified in remanding the case to the learned trial Court for decision afresh, on merits, according to law. The appellant .has nothing to feel aggrieved or prejudiced by the impugned order as the doors are not closed as yet. The case is still pending and he shall certainly get ample opportunity of being heard and have his say before the learned trial Court and therefore, I am of the considered opinion that this FAFO having no force, very richly deserves dismissal outright.;