Shamsher Bahadur, J. - (1.) THIS is a Defendant's appeal from the appellate order of the Senior Subordinate Judge, Ludhiana, setting aside "the judgment and decree of the trial Court" and remanding it for fresh decision after allowing opportunity to the parties to lead their evidence.
(2.) THE suit of the Plaintiff -Respondent Brij Bhushan for possession of land measuring 15 bighas and 17 biswansis was founded on a will which was executed by his grandfather Sita Ram on 26th of December, 1942. The suit was resisted by the Appellant, who is an uncle (father's brother) of the Plaintiff, and it was asserted by him that the properly left by Sita Ram should devolve equally to his there different sons or, as in the case of the Plaintiff, the representative of Madhusudan Lal, one of the sons of Sita Ram. The land was held by Sita Ram in Pakistan and allotment had been made in lieu of it by the Managing Officer who had rejected the claim of the Plaintiff on basis of the will. Evidence on behalf of the Plaintiff had been adduced on different hearings before the trial Court who by its order of the 28th of December, 1961, declined to entertain any secondary evidence with regard to the will which was reported to have been lost some time in 1958. It was claimed on behalf of the Plaintiff that letters of administration had been obtained in respect of this will by the Court of the District Judge in Pakistan before partition. The case was next fixed for 19th of January, 1962, when the Plaintiff made a statement that as he had been refused permission to lead secondary evidence of the will the suit which was based on it may be dismissed. On the same day the Defendant also made a statement to the effect that the suit may be dismissed and he be allowed costs. The order of the trial Court of 19th of January, 1962 is to this effect: As per statement of the counsel for the parties and the Mukhtiar of the Plaintiff, the suit of the Plaintiff be dismissed with costs. The memorandum of costs was prepared by the Subordinate Judge, Samrala, but no decree was framed dismissing the, suit.
(3.) THE Plaintiff preferred an appeal to the Senior Subordinate Judge on the ground that the trial Judge had erroneously rejected the reception of, secondary evidence. After discussion of the matter, the lower appellate Court decided in favour of the Plaintiff and remanded the suit as mentioned aforesaid.;