Pratap Kumar Ray, J. - (1.) This first miscellaneous appeal has been preferred by the defendant No. 2, being the appellant herein assailing the judgment and order dated 17.7.92 passed by Assistant District Judge, Ghatal in Title Appeal No. 18 of 1992 reversing the judgment and decree dated 18.11.91 passed by the learned Additional Minsif, Ghatal, in Title Suit No. 32 of 1987 and remanding back the suit to the learned trial Court for fresh adjudication.
(2.) The facts leading to this miscellaneous appeal in short are as follows :
(3.) One Sital Chandra Gurey, being the plaintiff filed Title Suit No. 104 of 1981 renumbered as Title Suit No. 32 of 1987 praying for declaration of right and title in respect of the property concerned as scheduled in the suit, on the claim that the property was purchased by him earlier from defendant No. 1 Syed Shajahan prior to purchase by defendant No. 2 Jahanara Khatun Bibi. In course of trial before the learned Court below, a substitution application was filed by the plaintiff on 20.6.89 praying for substitution of defendant No. 2 and two others, namely, Sk. Joynal and Jasimunnessa Bibi in place of deceased defendant No. 1 Syed Shajahan. This application was pending. On 18.11.91, the plaintiff prayed time on medical ground which was refused by the learned trial Court and he proceeded ex parte with the trial by examining defendant No. 2 Jahanara Khatun Bibi and thereby closed the evidence of defendant. After closing of the evidence, learned Court below considered the application for substitution dated 20.6.89 filed by the plaintiff in absence of the plaintiff who could not appear due to illness. The substitution application was decided ex parte on holding that the defendant No. 2 since already is a party in the suit there was no necessity for substitution. Such view was taken by the learned Court below on the application of defendant No. 2, who contended that she was the only sole legal heir of defendant No. 1. After that on 18.11.91, that is on the same date, on disposing of the substitution application, judgment was delivered by the learned trial Court dismissing the suit. From the judgment it appears that all the issues were taken up together and ultimately it was dismissed holding that the plaintiff failed to prove his title and possession over the suit land. As a reasoning it is mentioned to this effect "Moreover evidence of defendant is not refuted by the plaintiff. D.W. 1 is not cross-examined by the plaintiff." This finding was made by the learned trial Court though the learned trial Court on the same date rejected the prayer of the plaintiff seeking time and by this way the plaintiff could not be ready to proceed with the trial. Assailing the judgment and decree, which admittedly is a decree also in the name of deceased defendant Syed Shajahan, an appeal was preferred by the plaintiff. The learned appellate Court below on consideration of the materials and more particularly the manner in which substitution application was decided without hearing the plaintiff who filed the substitution application and the procedure as followed in pronouncing the judgment by not answering all the issues separately as well as on factual matrix that the decree was drawn up in the name of a dead person, defendant No. 1, was satisfied to remand the suit for trial de nova allowing the parties to adduce evidence further. The appeal Court further held that the substitution application of the plaintiff signed on 9.6.89 and filed on 20.6.89 should be disposed of by specific order and in proper form before proceeding with the trial further.;