AMITAV K.GUPTA,J. - (1.) This appeal is directed against the judgment dated 21.02.2011, passed by learned Additional District and Sessions Judge, FTC-II, Deoghar, in T.A. no. 47 of 2009, whereby learned Additional District Judge, has been pleased to remand the case to the trial court.
(2.) It is apparent from the impugned order that the appellate court has remanded the matter to the trial court for adjudicating on the issues as to whether the property of late Chathu Jha is required to be partitioned between the plaintiff and defendant and secondly, whether all heirs of late Chathu Jha were made parties in the suit and directed the trial court to decide the suit for partition.
(3.) Learned senior counsel for the appellant while assailing the impugned order has contended that the first appellate court has remanded the case without framing any point of determination as required under Order 41, Rule 31 of Code of Civil Procedure. It is argued that a Bench of this court in S.A. no.93 of 2004, has observed that the first appellate court is the last court of facts and law. That duty is cast on the first appellate court to formulate points for determination and decide the points on application of judicial mind and not to adjudicate the issues merely by reiterating the findings of the trial court. That in the given facts the order of remand under Order 41, Rule 25 of Code of Civil Procedure directing the trial court to adjudicate on the issues as mentioned above is not tenable as the first appellate court has passed the order without appreciating and considering the fact that the trial court has discussed the evidences of both the parties and given specific finding on all the issues, thus, the issues formulated in the remand order is unwarranted and the appellate court has committed grave error in directing the trial court to decide the suit for partition. On the above grounds it is urged that the impugned order is in contravention of the settled proposition and is fit to be set aside.;