J.V. Gupta, J. - (1.) The Defendants Appellants have filed this appeal against the order of the Additional District Judge. Sonepat, dated 17th of May, 1980, whereby the judgment and decree of the trial Court has been set aside and the case has been remanded to the trial Court for fresh decision.
(2.) The Punjab Wakf Board. Ambala Plaintiff -Respondent, filed a suit for possession of the land measuring 363 square yards forming khasra No. 4031 on the allegations that it was Darghe Sayyad Imman Nasar -Uddin and thus acquired the character of Wakf property by user, dedication and occupation The Defendants without any permission, illegally and forcibly occupied the said property and they told to vacate the same in spite of repeated efforts The suit was contested on behalf of the Defendants. It was contended that the suit property is neither wakf property and nor formed part of khasra No. 4031. On the pleadings of the parties, the trial Court framed as many as 9 issues but dismissed the Plaintiff's suit on the finding of issues Nos. 1, 2 and 3. On appeal, the learned Additional District Judge has reversed the finding of the trial Court on issue No. 2 it has been held that the plaint was instituted by a duly authorised person. On the finding of issues Nos. 1 and 3 of the trial Court, the lower appellate Court took the view that the case, in fact, requires further evidence and therefore, the finding of the trial Court on these issues could not be sustained It has been further held that the Plaintiff moved an application that a Local Commissioner be appointed and measurements be taken in respect of land in dispute but this application was wrongly dismissed by the trial Court. According to the learned Additional District Judge, the facts and circumstances of the case requires appointment of a suitable Local Commissioner and only then appropriate findings on these issues shall be possible. Consequently, the judgment and decree of trial Court has been set aside and the case has been remanded to the trial Court for deciding the matter afresh on these issues after recording further evidence including the appointment of the Local Commissioner. Feeling aggrieved against this order, the Defendants have come up in appeal in this Court.
(3.) Learned Counsel for the Appellants contended that under the circumstances of the case, there was no occasion for the lower appellate Court to set aside the decree of the trial Court and then remand the case for fresh decision after further evidence. In support of his contention, he referred to Smt. Dhapan v/s. Vijay Singh and Ors., 1980 PLR 211 and Sheo Daiti v/s. Mst. Sarbati and Ors., 1970 PLR 702.;