- (1.) THIS appeal has been preferred against the judgment passed by the ld. Additional District Judge, 2nd Court, Hooghly in title Appeal No. 204 of 1991.
(2.) IT is the case of the plaintiff/appellant that the original plaintiff, since deceased, filed the Title Suit No. 19 of 1984 before the ld. Assistant District judge praying for a decree of partition in respect of the properties, as mentioned in the schedule of the plaint. Said suit was contested by the respondent/defendant No. 5. After hearing the parties and upon consideration of the materials on record, the ld. Assistant District Judge by his judgment dated 28. 6. 1991 was pleased to decree the suit in preliminary form in favour of the plaintiff/appellant and thereby allowed the prayer for partition. Against that judgment the defendant No. 5 preferred an appeal before the ld. First appellate Court who after hearing the parties was pleased to remand the suit back to the Trial Court by way of allowing the prayer, as made by the defendant No. 5, for holding local investigation in respect of the properties, as mentioned in the partition deed of the year 1923, which allegedly took place in between the co-sharers, with that of the properties, as mentioned in the schedule of the plaint, in order to come to a conclusion as to whether the properties mentioned in the schedule of the plaint and the properties mentioned in the deed of the year 1923 were same or not. As the plaintiffs, who are the heirs of the original plaintiff, were aggrieved by this order of remand, so they have preferred this appeal before this Court praying for setting aside the said remand order.
(3.) IT is claimed by the appellant that the ld. Judge was not at all justified in setting aside the judgment, as passed by the ld. Trial Judge and in the process to send back the suit again to the Trial Court on remand for the purpose of holding local investigation. According to the appellants it was not permissible for the ld. First Appellate Court to remand the suit back to the Trial Court in order to fish out the evidence at such a belated stage. They have further claimed that the ld. First Appellate Court also committed illegality in not taking into consideration the entry in the record-of-rights in respect of the properties in dispute. It is further contended by the appellants that the ld. First Appellate Court committed mistake in allowing the defendant No. 5 to file the L. R. record of rights during the pendency of that appeal and thereby admitting those documents into evidence by virtue of provisions of Order 41 rule 27 of the Code of Civil Procedure, although the said defendant No. 5 could not produce those documents before the Trial Court although those were available to him at that time. It is further claimed by the appellants that the ld. First Appellate Court was not at all justified in sending back the suit to the Trial Court on open remand though there was no dispute for partition with regard to the other part of the properties under schedule of the plaint.;