FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. ---------------------------------------------------------------------------------------------------- Office notes, office Memoranda of | coram, appearance, court’s orders | Court’s or Judge’s orders. or directions and Registrar’s orders | APPEAL FROM ORDER NO.54/2009 Shri S.Y.Mahajan,Adv.for appellant. Shri T.B.Bhosale,Adv.for respondent no.1. Shri R.B.Deshmukh,Adv.R.3(a)&3(b) .... CORAM : R.K.DESHPANDE,J. DATE : 16/11/2009. 1] Notice of this appeal was issued 21/7/2009, in response to which Shri Bhosale, Adv.appears for respondent no.2, Shri R.B.Deshmukh,Adv.for Respondent nos.3-A and 3-B. Other parties are served. However, none appears for them. Parties agree that only the contesting party is respondent No.1 (respondent no.1 in R.C.A.No. 31/2000 and R.C.A.No.152/01), for whom Shri Bhosale appears. By consent of the parties, matter is heard finally. 2] This appeal is preferred by original defendants who had preferred Regular Civil Appeal No. 31/2000 in the Court of District Judge, at Osmanabad. Similarly, one another appeal by other defendants being R.C.A.No.152/2001 was also preferred, both challenging the decree for partition and separate possession passed by the trial Court in R.C.S.No.303/84. By the impugned judgment and order dated 17/11/2008, the learned District Judge-II, Osmanabad remanded the matter back to the trial Court for decision afresh on the basis of the observations made in the judgment. The operative part of the judgment of the appellate Court is reproduced below : Both the appeals are allowed. Judgment and order passed by the trial Court is set aside. The suit is remanded to the trial Court with a direction to direct the plaintiff to add land Sy.Nos.22 and 65 in the suit within a reasonable time. On her failure, suit will stand dismissed. On the plaintiff bringing these two lands in the common hotchpot, the trial Court shall proceed further on the basis of observations in the judgment. 2] The learned counsel for the appellant Shri Mahajan contended that one of the issues involved before the appellate Court for adjudication was regarding proof of the Will Deed dated 24/5/1963 which is at Exh.115. The trial Court has held that the said Will Deed is not proved. According to him, the appellate Court ought to have dismissed the appeal and should not have remanded the matter back to the trial Court. He further states that if the appellate Court wanted to remand the matter to the trial Court for decision afresh, then it should not have directed the trial Court to proceed further on the basis of the observations in the judgments, particularly which pertains to the finding recorded in respect of the Will Deed Exh.115 dated 24/5/1963.The parties are at consensus that as per the order passed by appellate Court, Survey Nos.62 and 65 are required to be added and accordingly, the plaintiff has filed application for amendment of the plaint for inclusion of survey nos.22 and 65 which is pending in the trial Court. In my opinion, if the land survey nos.22 and 65 were required to be included in the plaint so as to make the same available for partition in the suit, then the appellate Court should not have made observations on merits of the proof of Will Deed Exh.115 dated 24/5/1963. When the matter is remanded back to the trial Court, appellate Court should have left the question open for the parties to readjudicate it before the trial Court. 3] In the result, the instant Appeal from Order is allowed. The impugned common judgment and order dated 17/11/08 passed by learned District Judge-II, Osmanabad in R.C.A.No.31/2000 and 152/2001 is modified to the effect that the trial Court shall consider application for amendment of plaint to include Survey Nos.22 and 65 on its own merits without being influenced by any of the observations made by the appellate Court. Similarly, the trial Court shall also proceed with the trial and decision of the suit in accordance with law without being influenced by any of the observations made by appellate Court in its order. Thus, the judgment and order passed by appellate Court stands modified. The appeal is allowed with no order as to costs. (R.K.DESHPANDE, J.) umg/ao54-09