Sharma, J. - (1.) THIS is the plaintiff's appeal. The suit out of which it has arisen was filed by Mat. Govindi plain-tiff against the defendant Chhaganlal alias Gulabchand on the allegation that she was the owner of a certain house situated in Chaukri Topkhana Desh, Rasta Khazanewalan, in the city of Jaipur. THIS house was purchased by her husband Narhulal at an auction sale held in execution of a decree on the basis of a mortgage made in favour of Nathulal in 1914. Before his death Nathulal executed a will on Kartik Sudi 12, St. 1989, corresponding to 10th November 1932 in favour of the plaintiff bequeathing the house in dispute, among other property, to the plaintiff. After the death of Nathulal the plaintiff had allowed the defendant to occupy a certain portion of the house for residence. THIS portion was shown by cross red lines in the map attached to the plaint. It was alleged that the plaintiff asked the defendant several times to vacate the house but he had not vacated it. It was, therefore, prayed that the plaintiff be put in possession of the property after dispossession of the defendant.
(2.) THE defendant pleaded that he was the adopted son of Nathulal and as such inherited the property in suit after the death of Nathulal. It was alleged that the will set up by the plaintiff was fictitious and a forged one. THE plaintiff had no other right in the property except that of residence and maintenance. Several issues were framed by the Civil Judge who tried the case but only the following issues are necessary for the purposes of this appeal: - (1) Whether Nathulal deceased had adopted the defendant as his son and the defendant was in possession of the property in suit since then? (2) Whether Nathulal executed the will set up by the plaintiff in her favour and, if so, what was its effect? The learned Civil Judge gave his finding on the first issue given above in the affirmative and held that the plaintiff had been adopted as his son by Nathulal. The second issue was answered in the negative and it was held that the will was not genuine, nor had Nathulal any power to execute the will so as to defeat the defendant's right. The result was that the suit was dismissed. The plaintiff filed an appeal in the court of the District Judge, Jaipur City, against the decree of the first court but his appeal was dismissed. She filed a second appeal in the Jaipur High Court and it was held that it was proved that the defendant had been adopted as his son by Nathulal. The Will was, however, held to be genuine but it was held that it was not clear as to whether the property conveyed by the said will was joint Hindu family property or the separate property of Nathulal. The following issue was therefore framed and remitted to the first court for the evidence of the parties and the finding of the first court thereon : - "whether the house purchased by Nathulal under the sale certificate dated the 9th December 1922 was joint family property and could not be validly disposed of by Nathulal under bis will (Ex. 3) dated the 10th November 1932. " On receipt of the record the first court proceeded to record the evidence of the parties on the additional issue framed and the record was submitted along with this evidence and the finding of the first court. The Jaipur High Court having been abolished on the establishment of this Court, the appeal has come before it for hearing as the successor court. We have heard the learned counsel for both the parties. Mr. , J. N. Mathur appearing on behalf of the defendant-respondent contended in the first instance that the finding on the question of will by the Jaipur High Court was wrong and we should therefore examine the evidence in order to substitute our own finding 00 that point. Some authorities were cited for the view that in case after a certain finding an appellate court remands a case for a finding on certain additional issue the findings of the appellate court before the remand are not binding on it and the appellate court can examine the evidence on the point with a view to substitute its own finding. The following rulings were relied upon: - I. Gopinath Shukul vs. Sat-narain Shukul (A. I. R. 1923 All. 384), 2. Gendalal vs. Hazarilal (A. I. R. 1936 All. 21), 3. Upendra-lal Gupta vs. Jogesh Chandra Roy (A. I. R. 1928 Cal. 118), 4. Man-mohan Das vs. Shib Chandra Saha (A. I. R. 1931 Cal. 353), 5. Muchu-mari Malliah vs. Yerravalu Gan-qanna and others (A. I. R. 1926 Mad. 830 ). In the first case referred to above, it was held by Daniel, J. that where an appellate court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order. The reason given is that an order remanding issues under Rule 25 is not a final order. The responsibility for the decree ultimately passed is entirely that of the court before which the case comes after remand. In the second case referred to above, there is nothing which might support the contention for the respondent. In the third case cited above, it was held by a Division Bench of the Calcutta High Court that an order of remand made under Order 41 Rule 25 C. P. C. decides nothing, and the reasons that the court gives for its support are given merely for its own convenience for the purpose of the determination of the appeal under Order 41 Rule 26 C. P. C. and for helping the lower court to proceed rightly in carrying out the order. The court, either the same or differently constituted, when determining the appeal finally has ample jurisdiction to go back on the views as expressed in the order of remand passed under Order 41 Rule 25 C. P. C. and indeed it would fail in its duty if in deference to those views which are entitled to the highest respect, it persists in them, although it is satisfied that they are erroneous.
(3.) IN the fourth case it was held that the mere fact that a Judge of the appellate court in the first instance remands a case for taking additional evidence cannot deprive him of his jurisdiction to dismiss the appeal at a later stage if it is found to be incompetent. The principle laid down in that case, therefore, does not help the respondent and is no authority for the proposition that the appellate court at the time of the final disposal of the appeal might substitute another finding in place of the finding already arrived at the time of remand. In the fifth and the last case it was held by a Division Bench of the Madras High Court that though parties have no right to insist upon reopening questions that had been decided before calling for a finding, yet it is open to the court to do so if it thinks fit and it cannot be said to act without jurisdiction if it goes back upon the position taken by it previously so long as the case is not out of its hands. The learned counsel for the appellant agreed with the view taken in the last mentioned ruling of Madras High Court and cited a Full Bench ruling of the Allahabad High Court in the case of Mst. Chauli alias Subhadra Devi vs. Mst. Meghoo and others (A. I. R. 1945 All. 268) wherein it was held that where a Division Bench hearing an appeal records its findings on some of the issues and remits other issues to the lower court for recording its findings thereon and on return of those findings the appeal comes up for hearing before another Division Bench the position of the second Division Bench is exactly the same as would have been the position of the First Bench if the appeal had come up before it again when findings on issues were submitted by the lower court. The second Bench like the first is not bound by the previous findings and is entitled in its discretion, if it so desires, to reconsider those findings. It is conceded that this court may in its discretion consider the findings given by Jaipur High Court at the time of remand and may substitute its own findings on the same points but it should be very chary of doing so because Jaipur High Court had after a consideration of evidence recorded a finding of fact in favour of the plaintiff on this point and unless the said finding is vitiated by gross and palpable error there is no reason to disturb it. We have considered the arguments of both the learned counsel on this point and we perfectly agree with the views of the Madras High Court expressed in A. I. R. 1926 Mad. 830 and the views of the Full Bench taken in the Allahabad case just referred to. It is not the right of any of the parties to insist upon us to re-examine evidence on the points already decided by Jaipur High Court Bench with a view to find out if that finding is correct or not and to substitute our own finding. It is the discretion of this court to reopen that finding or not. We are of opinion that a rinding arrived at by the same court of appeal at the time of the remand of the case under Order 41 Rule 25 C. P. C. specially on a point of fact should not be lightly disturbed. The court will, however, be entitled in its discretion to reopen the finding if it finds any special and strong reasons for doing so. From the judgment of the Jaipur High Court Bench we find that the evidence on this point of fact was considered by the court and reasons have been given for accepting the evidence produced by the plaintiff and holding that the will was proved to be genuine. We do not find any palpable or patent error on the basis of which we might consider ourselves entitled to reopen the finding. The learned counsel for the respondent pointed out from the plaint that the Hindi date of the will was given as Kartik Sudi 13, St. 1989 whereas the death of Nathulal has been given as Kartik Sudi 12, St. 1939. It was argued that on the allegations contained in the plaint itself the will was not genuine as it could not be executed a day after the testator's death. If only Hindi dates had been given in the plaint the allegations would certainly have been very startling, because it is not possible that a will could be executed after the death of the testator. On a close perusal of the plaint, however, it appeared that it was only on account of some clerical mistake that the date of death has been given as the date of the execution of the will and vice versa. In paragraph 5 of the plaint the plaintiff no doubt alleged that the will was executed on Kartik Sudi 13, St. 1989 but fortunately for her she has also given the corresponding English date as 10th November 1932. Similarly, in paragraph 6 she has given the corresponding English date of death of Nathulal as nth November 1932. On a reference to the calendar it was found that Kartik Sudi 12, St. 1989 corresponded to 10th November 1932 and Kartik Sudi 13, St. 1989 corresponded to nth November 1932. Moreover, the plaintiff has clearly alleged that the will was executed before the death of Nathulal. It cannot be expected that the plaintiff would be so foolish as to give the date of the execution of the will in the plaint itself which fell after the death of the testator. We are satisfied that it is merely a clerical error that Hindi dates had been reversed in the plaint. ;