Mehar Singh, J. - (1.) THIS second appeal arises out of a usual declaratory suit under custom. Phul Singh Defendant is the brother of Ram Murti alias Ram Chand Plaintiff. He made, the following four alienations of his land - (a) a mortgage, dated 25 -7 -1950, of 7 bighas and 10 biswas land in favour of Ami Chand and others, Defendants No. 2, for Rs. 900/ -; (b) a mortgage, dated 13 -6 -1951, of 12 bighas and 10 biswas land in favour of Anchal Singh, Defendant No. 3, for Rs. 2,500/ -; (c) a mortgage, dated 15 -6 -1951, of 7 bighas and 9 biswas land in favour of Kabal Singh and others,' Defendants No. 4, for Rs. 2,400/ -; and (d) a sale, dated 21 -1 -1953, of 2 bighas and 13 -1/4 biswas land in favour of Kehar Singh, Defendant; No. 1, for, Rs. 596/ -. The Plaintiff alleged that the lands alienated are ancestral qua him and his brother, the alienor, that all the alienations were effected without consideration and legal' necessity, and that the parties were governed by custom in matters of alienation. He further averred .that the alienor was a man of extravagant and reckless habits and was addicted to bad ways such as taking liquor and opium and so the alienations were made by him as reckless extravagance and waste and in order to injure -his reversionary rights in the lands. He therefore prayed for a declaratory decree that the alienations would not be binding upon his reversionary interests after the death of his brother Phul Singh. Of course the alienees in their written -statements controverter all the averments of the Plaintiff.
(2.) THE learned trial Judge found for the Plaintiff that the parties are governed by custom in matters of alienation, that the alienated lands are ancestral qua the Plaintiff and the alienor, that the alienor is a man of reckless and extravagant habits and has wasted the estate to the injury of the' reversionary interests of the plaintiff and that all the alienations are without legal necessity. -' The suit of the Plaintiff was decreed qua. all the four impugned alienations. There was no appeal against the decree toy Defendants 1 and 2, but Defendants 3 and 4 filed an appeal against it, which was heard and decided by the learned Additional District Judge of Patiala. He came to the conclusion that the finding of,the learned, trial Judge against the appealing Defendants has been prejudiced on account of the omission to frame an issue that the alienor is a man of extravagant and reckless habits, in spite of the Plaintiff having made a specific averment in this respect in the plaint, and as there was no issue on the question so the defendants -Respondents did not get proper opportunity to lead evidence upon it. In the result he framed an issue whether Phul Singh alienor is a man of extravagant habits: if so, what is its effect - and placing the onus of proof of the issue upon the Plaintiff, he, curiously enough, did not proceed according to the procedure provided in Order 41, Rule 25, Code of Civil Procedure, and remit the issue for trial and finding to the trial Court, but set aside the decree of the trial Court as a whole and ordered a re -trial of the case, in so far as the appealing Defendants were concerned. It is against the decree of the learned Additional District Judge, in the circumstances stated, that the Plaintiff has come up in second appeal.
(3.) THE procedure adopted by the learned Additional District Judge, assuming for the moment that the remand of the case was justified, was entirely un -warranted, and in the view that he took, the only course open to him was to settle the issue and then follow the procedure as given in Order 41, Rule 25, Code of Civil Procedure, in which case the appeal would have still remained pending in -his Court for disposal till after the receipt of the evidence and finding on the issue by the trial Court.;