AZIZUL HAQUE AND ORS. Vs. RAMDHARI RAM KUNIA AND ORS.

JUDGEMENT

(1.) THE petitioners in this case have moved against an order of the learned District Judge, Upper Assam Districts, setting aside the judgment and decree of the Trial Court and remanding the case to that Court for re -hearing according to law. It relates to a suit for declaration of title and recovery of possession instituted by the petitioners, in which they also claimed mesne profits.

(2.) THE plaintiffs alleged that they had purchased the disputed property from one Ram Ajodhya under a deed of sale, dated 12 -6 -45, - - Ram Ajodhya himself having purchased it from one Mahabir under another deed of sale, dated 22 -6 -43. On the basis of their purchase, the petitioners were mutated in November, 1945. The defendant No. 1, who is the contesting defendant, on the other hand claimed that Ram Ajodhya had no title to the property and that they had already purchased the land from the owner, Mahabir, some -time in May, 1943, that is, prior to the date of sale in favour of the petitioners. He stated that no registered document of sale was executed by the vendor in his favour, but he was in possession of the property and continued to be in possession by virtue of the sale. It appears that the case was fixed for hearing on 31 -8 -50. On that date, the plaintiffs filed certain documents, but no steps were taken by the defendant, and the case was ordered to be kept on the ready list.

(3.) THE lower Appellate Court appears to have taken a different view of the matter. That Court thought that an opportunity should have been given to the defendant to prove the document in question and to lead secondary evidence on the point as to who was the executant of the document, and whether it did contain any signature of the executant and the scribe. On these grounds, the Court, without deciding any of the issues involved in the suit, set aside the judgment and decree of the trial Court which was in favour of the petitioners, and directed the suit to be remanded to the trial Court for hearing according to law after giving an opportunity to the defendant to prove those documents.