HIGH- COURT OF CHHATTISGARH AT BILASPUR @ Misc. Appeal No. 338 of 2004 APPELLANT Mishrilal Yadav, aged about 60 PLAINTIFF years, S/o Rama Yadav, resident of ,Village Kopra, Police Station and Tehsil Rajim, Distt'; Raipur (CG) Versus ' RESPONDENTS 1. Narayan alias Ramnarayan Yadav, DEFENDANTS aged about 35 years, S/o Rama Yadav 2. Mina Bai, aged about 32 years, W/o Narayan Yadav Both residents of Village Kopra, Police Station and Tehsil Rajim, District, Raipur (CG) SB:- Hon. Shri N.K. Agarwal, J. PRESENT :— Shri H.S. Patel, Adv. for the appellant. Shri Satyendra Sahu, Adv. for the respondents. o R A L o R D E R (30-4~2010) 1. This is plaintiff’s appeal against the judgment and decree l dated 14—1—2004 passed by the District Judge, Raipur in Civil Appeal No. 13-A/2003 remanding the case to the trial Court for its re-trial. f 2. Facts necessary for disposal of this appeal, in brief, are as under: - The plaintiff / appellant filed a suit before the Civil Judge Class I, Gariyaband bearing Civil Suit No. ‘39—A/2002 claiming relief Of right of way against the respondents. The trial Court vide its judgment and decree dated 1—2—2003 L decreed the suit. There-against, appeal was preferred before the District Judge, Raipur. The said appeal was allowed by the impugned judgment and decree and the matter was remanded back for its retrial. Hence this appeal. 4. Shri H.S. Patel, learned counsel for the appellant would submit'that a bare perusal of the issues framed by the trial 'Court would reveal that the issues framed by the appellate i 1 ! Em a: i , s f 1 p: Court and the issues framed by the trial Court are almos similar in nature, parties have already led evidence, therefore, the order of retrial by the appellate Court is patently illegal and deserves to be set aside and the instant appeal deserves to be allowed. On the other hand, Shri Satyendra Sahu, learned counsel appearing for the respondents would contend that as per the plaintiff’s/appellant’s case, there was a partition e between the parties. In that partition the suit land was kept as joint land for Nistar of both the parties but the respondents herein have encroached upon the said land disturbing their Nistari rights. According to the respondents, the suit land was allotted in their. share in the partition. As the relevant issues have not been framed by the trial Court, therefore, learned appellate Court has rightly remanded back the matter for its retrial after framing proper issues in accordance with the pleadings of the parties and the appellate judgment and decree deserves l to be upheld. I have heard learned counsel for the parties and perused the impugned judgment and decree. Indisputably the appellant’s suit was based on prior partition in which according to him the suit land was kept for Nistar of both the parties, out of which, some portion has been encroached upon by the respondents, due to Which the appellant’s Nistari rights have been obstructed. In reply, the respondents’ case was that the disputed land was allotted to them in partition and pursuance of the above partition, they are in possession of the suit land since beginning and the appellant is having separate way for his Nistar. He has denied that the suit land is kept as Niétari land and has been used as Nistari Rasta at any point of time. On all these points, issues have not been framed by the trial Court, therefore, the appellate Court ‘. has rightly re-framed proper issues in accordance with the In View of the above, I do not find any illegality in the impugned judment and decree. This appeal being devoid of substance deserves to be and is hereby dismissed. /f/ Sdl- N.K. AGARWAL Judge pleadings of the parties and rightly remanded the Q $ back for its retrial. g f M