- (1.) PANKAJ Mithal, J. Heard Sri C. K. Rai, holding brief of Sri Faujdar Rai learned counsel for the appellant. Respondent No. 1 was issued notice to engage another counsel. He was served with the notice and the sen rice was held to be sufficient but even then no one has put in appearance: on his behalf. Respondents No. 2 and 3 are duly represented but no one turned up on their behalf despite the list being revised.
(2.) THE plaintiff-respondent No. 1 had filed Original Suit No. 386 of 1971 for permanent mandatory injunction restraining the defendant appellant from interfering in his right to use the 'nali' shown by letters A, B, S, D, in the plaint map and for mandatory injunction directing the defendant-appellant to remove the roots and branches of the trees from his grove land shown by letters Y, R, L, W, in the plaint map. THE suit after contest was partly decreed by the Court of first instance vide judgment and order dated 22. 5. 1981. It was decreed in respect of the 'nali' but was dismissed with regard to grove land shown by letters Y, R, L, W. Not being satisfied by the judgment, order and decree of the Court of first instance, the plaintiff- respondent No. 1 preferred Civil Appeal No. 421 of 1981. The defendant-appellant filed cross-objections and assailed the part of the decree in respect of nali. The lower appellate court vide judgment and order dated 8. 11. 1982 has set aside the judgment, order and decree of the Court of first instance and has remanded the matter for decision afresh in the light of the observations made in the judgment. It is against the judgment, order and decree of the lower appellate court dated 8. 11. 1982 that the defendant appellant has filed this first appeal from order under Order XLIII, Rule 1 (u), C. P. C.
(3.) LEARNED counsel for the appellant has submitted that lower appellate court was not justified in setting aside the decree passed by the court of first instance and to remand the matter. The order of remand amounts to giving an opportunity to the plaintiff-respondent No. 1 to fill in the lacuna in the evidence. I have perused the judgment and order of the lower appellate court. The lower appellate court in remanding the matter has observed that the plaintiff did not get any site plan prepared so as to prove the existence of the 'nali' and the tubewell. It also states that the plaintiff has not pleaded the basis on which he is claiming right over the 'nali' nor he has alleged and proved that the said 'nali' was left out in the consolidation proceedings to enable him to irrigate his fields. The survey map 60 Ka2 has also not been made part of the decree and position of the nali is also not clear from the same. In view of the above observations the lower appellate court remanded the matter with the categorical direction to the lower court to give opportunity to the plaintiff-respondent No. 1 to file the map of the consolidation proceedings so as to prove the existence of the 'nali' and further to clarify the dimensions, area and number of the public land, if any, left out in the consolidation proceedings for the purposes of the said 'nali'.;