CHATURGHUN Vs. DHANPATI RAI

JUDGEMENT

(1.) PANKAJ Mithal, J. Heard Sri C. K. Rai, holding brief of Sri Faujdar Rai learned counsel for the appellant. Respondent No. 1 was issued notice to engage another counsel. He was served with the notice and the sen rice was held to be sufficient but even then no one has put in appearance: on his behalf. Respondents No. 2 and 3 are duly represented but no one turned up on their behalf despite the list being revised.

(2.) THE plaintiff-respondent No. 1 had filed Original Suit No. 386 of 1971 for permanent mandatory injunction restraining the defendant appellant from interfering in his right to use the 'nali' shown by letters A, B, S, D, in the plaint map and for mandatory injunction directing the defendant-appellant to remove the roots and branches of the trees from his grove land shown by letters Y, R, L, W, in the plaint map. THE suit after contest was partly decreed by the Court of first instance vide judgment and order dated 22. 5. 1981. It was decreed in respect of the 'nali' but was dismissed with regard to grove land shown by letters Y, R, L, W.

(3.) LEARNED counsel for the appellant has submitted that lower appellate court was not justified in setting aside the decree passed by the court of first instance and to remand the matter. The order of remand amounts to giving an opportunity to the plaintiff-respondent No. 1 to fill in the lacuna in the evidence.