IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 3 OF 2008 1. Radhey Shyam, S/o late Prabhu Dayal, R/o Meena Magar, Haldwani, District – Nainital. 2. Smt. Laxmi Narayan, W/o Sri Laxmi Narayan, R/o through M/s Biharilal Laxmi Narayan, Kehla Ganj, Alwar, Rajasthan. …………………Appellants. Vs. 1. Matadeen, S/o Prabhudayal, R/o Karkhana Bazar, Haldwani, District – Nainital . 2. Smt. Angoori Devi, W/o Sri Giriraj Prasad, R/o Plot No. 06, Scheme No. 07, Panchvati Colony, Alwar, Rajasthan. ……………….Respondents. Dated: 4.1.2008 Hon’ble Rajesh Tandon, J. Heard Sri P.C. Kandpal, counsel for the appellant. 2. By the present A.O. filed under Order 43 Rule 1 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and order dated 5.10.2007 passed by the Additional District Judge, Haldwani in Civil Misc. Appeal No. 24 o 2005 Matadeen and others Vs. Radhey Shyam and others. 3. Briefly stated, a suit was filed by the plaintiff for partition being Misc. Civil Suit No. 14 of 2004 Radhey Shyam Vs. Matadeen claiming ¼ share in the house No. 11/223 situate at Shahukara Line, Haldwani. The trial Court decreed the suit of the plaintiff to the extent of ¼ share in the house in question on 12.8.2005. 4. Against the said order, the defendants went in appeal by filing Misc. Civil Appeal No. 24 of 2005 Matadeen and others Vs. Radhey Shyam and others. The appellate Court has allowed the appeal and remanded the matte to the trial Court with the following directions: ^^vihykFkhZ dh izdh.kZ vihy Lohdkj djrs gq, i=koyh bl funsZ’k ds lkFk voj U;k;ky; dks fjek.M dh tkrh gS fd voj U;k;ky; iqu% deh’ku tkjh dj vf/koDrk vk;qDr dh fjiksVZ ij ;fn i{kdkj vkifRRk nkf[ky djrs gS rks nksuks i{kdkjks dsk lqus tkus ds ckn vf/koDrk vk;qDr dh fjiksVZ lEiq"V dj] viuk fu.kZ; ifjr djsaA dh tkrh gSA” 5. A perusal of the order passed by the appellate Court shows that the commission has been directed only on the ground that the report Paper No. 27Ga/3 and Map No. 27Ga/6 and 27Ga/9 should have been confirmed after hearing both the parties. Appellate Court has observed that objections against the said report has been filed as Paper No. 28Ga. 6. Counsel for the appellant has pointed out that if objections have already been considered, the same may be considered in accordance with paragraph 10 of the judgment of the trial Court. Paragraph 10 of the trial court’s judgment is quoted below: “10- izfroknh la0 2 y{ehnsoh ds }kjk “kiFki= 33 x izLrqr djrs gq, ;g dFku fd;k gS fd izfroknh la0 1 ,oa 3 ds }kjk izLrqr odhy dfe’uj dh fjiksVZ ds fo:} vkifRr cnfu;friw.kZ gSA odhy dfe’uj ds }kjk tksa fjiksVZ izLrqr dh gS og iw.kZr% O;ogkfjd gSA” 7. However, without going into the merit of the controversy, on filling the application by the appellant before the appellate authority bringing on record that the objections filed against the report of the commissioner have already been confirmed after hearing the parties by the trial Court, the appellate Court is directed to decide the same afresh in the light of paragraph 10 of the trial Court’s judgment. If the appellate Court after considering the report and the map considers that fresh commission is required, he may pass appropriate orders accordingly. 8. Subject to aforesaid observations made above, appeal is dismissed at this stage. No order as to costs. (Rajesh Tandon, J.) 4.1.2008 Rathour