1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellants herein to quash and set aside the impugned judgement and order dated 05/09/2011 passed by learned Principal District Judge, Dahod in Regular Civil Appeal No.25 of 2006, by which, learned Appellate Court has quashed and set aside the judgement and decree passed by the learned Trial Court and remanded the matter to the learned Trial Court for retrial of the suit.
2. The appellants herein - original plaintiffs instituted Regular Civil Suit No.117 of 1992 in the Court of learned Civil Judge (J.D.), Devgadh-baria for suit property in question. That original defendant No.5 expired, however his heirs were not brought on record. That thereafter and despite the same, learned Trial Court by judgement and decree dated 05/02/2001 allowed the said Suit and passed preliminary decree holding that the plaintiffs have 1/2 share in the disputed suit land in question.
3. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (J.D.), Devgadh-baria, original defendants have preferred Regular Civil Appeal No.25 of 2006 before learned Principal District Judge, Dahod and learned Appellate Court by impugned judgement and order dated 05/09/2011 has allowed the said appeal partly by quashing and setting aside the judgement and decree passed by the learned Trial Court in Regular Civil Suit No.117 of 1992 and remanding the matter to the learned Trial Court for retrial of the Suit in exercise of powers under Order 41 Rules 23, 23(a) and 33 of the Code of Civil Procedure.
Being aggrieved by and dissatisfied with the impugned order dated 05/09/2011 passed by learned Principal District Judge, Dahod remanding the matter to the learned Trial Court, the appellants herein - original plaintiffs have preferred the present Second Appeal u/s.100 of the CPC.
4. Ms.Nidhi Barot, learned advocate appearing on behalf of the appellants herein has vehemently submitted that learned Appellate Court has materially erred in quashing and setting aside the judgement and decree passed by the learned Trial Court and remanding the matter to the learned Trial Court for retrial of the suit. It is submitted that it was duty of the original defendants to bring heirs of original defendant No.5 on record, for which, the appellants herein - original plaintiffs should not be made to suffer. Therefore, learned Appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned Trial Court and remanding the matter to the learned Trial Court for retrial of the suit.
5. Heard Ms.Nidhi Barot, learned advocate appearing on behalf of the appellants herein - original plaintiffs and considered and gone through the judgement and order passed by the learned Appellate Court. Considering the fact that the suit was for partition and one branch was not given an opportunity as original defendant No.5 and heirs were not brought on record and it was held that the original plaintiffs have 1/2 share in the suit land in question, when the Appellate Court has remanded the matter to the learned Trial Court for retrial of the suit, the same is not required to be interfered with by this Court in exercise of powers u/s.100 of the Code of Civil Procedure. As no prejudice shall be caused to the appellants herein - original plaintiffs as ultimately on remand, learned Trial Court shall decide and dispose of the suit on merits after giving an opportunity to all concerned. Under the circumstances, no interference is called for. Hence, the present Second Appeal deserves to be dismissed and is accordingly dismissed.
[M.R.SHAH,J] *dipti Top