R.N. Mittal, J. - (1.) THIS appeal is directed against the judgment and decree dated January, 16, 1976, of the learned Additional District Judge, Sangrur, remanding the case under Order 41. Rules 23 A of the Cede of Civil Procedure (hereinafter referred to as Code) for fresh decision in accordance with law.
(2.) BRIEFLY the case of Surinder Singh -Plaintiff is that he bad been (sic) by Smt. Ram Kaur widow of Ghanyia Singh, defendant No. 4 and an adoption deed dated October 19, 1959, was executed by her in his favour, he further alleged that in view of the adoption he became owner Of ore half property of the deceased husband of Smt. Ram Kaur It is then averted that Smt. Ram Kaur had agreed that she would hold the half share of the property as a life estate owner. Later she alienated the properly in favour of Jangir Singh, Gurbax Singh and Sher Singh defendants No. 1, 2 and 3 respectively vide sale dead March 24, 1966 The plaintiff instituted a suit for possession of one half shire and for declaration in respect of the other half share on the ground that the sale by defendant No. 4 in favour of defendants No. 1 and 2 was ineffective qua his rights. The suit was contested by the defendant who inter alia, pleaded that the adeption deed was got executed in favour of the plaintiff by fraud, undue influence and misrepresentation, that Smt. Ram Kaur had become full owner of the property in view of section 14 of the Hindu Succession Act, and that defendants No. 1 and 2 were bona fide purchasers The learned trial Court dismissed the suit. The plaintiff went up in appeal against the judgment and decree of the trial Court to the learned Additional District Judge Sangrur.
(3.) DURING the pendency of the appeal, Smt Ram Kaur died. After her death the plaintiff appellant became entitled to possession of whole of the property. He applied to the Court to allow him to amend the plaint and convert the suit regarding half of the property from declaration to that of possession. The learned Additional District Judge allowed the amendment. The vendees filed fresh written statement to the amended plaint and therein took the plea that Smt. Ram Kaur had executed a will in favour of one Karnail Singh and, therefore, the plaintiff had no right to continue the suit. The learned Additional District judge in view of the plea of the vendees, sent the case to the trial court for recording evidence with respect to the will, which it did. After the evidence was received by the appellate Court an argument was raised before it that in view of the amendment in the written statement issues should be framed and the case be remanded for fresh trial Court under Order 1, Rule 3 -A of the Code Consequently, the learned Additional District Judge framed the following two issues: - 1. Whether Smt Ram, Kaur had executed a valid will in favour of Karnail Singh? OPD 2. Whether the plaintiff is entitled to succeed to the property in dispute, in preference to Karnail Singh in case, the will in his favour is proved? O.P.D. He accepted the argument of the learned counsel for the plaintiff, set aside the judgment and decree of the learned trial Court and remanded the case to if for fresh decision after giving the parties an opportunity to lead evidence The vender defendants have come up in appeal against this judgment to this Court;