1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 193 OF 2009. Laxman Sakharam Chaudhary (dead) Kaushalyabai L. Chaudhari &Ors. Vs. Kanta Chandrabhan Padole & Ano. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri Abhay Sambre Adv for appellants. CORAM: C. L. PANGARKAR J. DATED: 1 st SEPTEMBER, 2009. Heard counsel for the appellant. None appears for the respondents. This appeal has been preferred against the order passed by the Additional District Judge whereby he had remanded the appeal back to the trial Court. Respondents herein have instituted a suit for partition and separate possession of the suit property. It was their contention that the property of which they are seeking partition belonged to their 2 mother and since their mother had died they have share in it. Present appellant resisted the suit and learned Judge of the trial Court found that plaintiffs have no share in the suit property. Holding so he dismissed the suit. Feeling aggrieved thereby plaintiffs have preferred an appeal. During the pendency of the appeal, plaintiffs moved an application for amendment of the plaint and sought to add in the said suit three more fields which according to them were also part of the joint family property in which they had a share. Said amendment application was allowed by the appellate Court. Thereafter the learned Judge of the appellate Court heard the appeal. He found that since the amendment has been allowed it would be necessary to remand the matter back to the trial Court in order to afford an opportunity to both the parties to prove what is the character of the suit property. Defendants appellants feel aggrieved by the order of remand. 3 Learned counsel for the appellants submits that the learned Judge of the appellate Court should not have remanded the matter back to the trial Court and he should have himself decide the appeal on merits. I do not find any substance in the contention of the learned counsel. Amendment application was allowed. The plaintiffs have sought to include certain more property in the suit property. Unless and until the character of the property of which partition is sought is decided the appeal could not have been decided by the Court as no evidence was available before the appellate Court with regard to the character of the suit property. In the circumstances the learned appellate Judge has rightly remanded the matter back to the trial Court and I therefore see no substance in the second appeal. The order passed by the first appellate Court therefore stands confirmed and the appeal is dismissed in limine. JUDGE svk