1 AO 17 of 08 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.17 OF 2008 (Supabai Sojabai Adiwasi Shikshan Prasarak Mandal, Raikhed,through Madhav Sambhu Patil) WITH C.A. NO.2509/2008 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. H.V.Tungar, Adv., h/f Mr. C.R.Deshpande, Adv., for the appellant. Mr.Prashant Nagargoje, Adv., h/f Mr.P.R.Katneshwarkar, Adv., for respondent nos. 1 to 3. ... CORAM: K.U.CHANDIWAL, J. DATE:10-12-2010 1. Heard. The Appeal From Order is admitted on 15.12.2008. 2. No substantial question of law, at the time of admitting the Appeal From Order, was formulated. After hearing both the learned Counsel, following substantial question of law is formulated: "Whether the learned Ad hoc District Judge-II, Shahada, did not err in remanding the matter for deciding the 2 AO 17 of 08 question of ownership of the trust over the suit house, when there was already an issue being Issue No.3 about title of the suit house to the appellant and having answered the same in affirmative in RCS No. 2/1997." 3. Both the learned Counsel have, in order to stress their point, even adverted to the evidence. The record of the appellant trust was also tried to be explained by the learned Counsel representing the respondent. Learned District Judge remanded the matter on the ground referred in paragraph no. 9, which reads as under: "However considering above referred to aspects about the gift or donation by Madhav Sambhu of suit house to the trust, in my view plaintiff failed to give proper explanation and cogent evidence to show that trust has been gifted or donated the suit house and itself has right to claim the possession from the 3 AO 17 of 08 defendants. This very important part is lacking in the evidence of trust. " In paragraph No.10, the learned Judge has observed, " Since the defendants have raised legal point of non joinder of necessary parties and since plaintiff is claiming as a trust to set this point at rest, it is better for plaintiff to obey provision of Order XXXI (2) of the Code of Civil Procedure and necessary steps to that effect be taken." 4. The learned appellate Court did not venture to evaluate effect of Section 99 of Civil Procedure Code, equally effect of Order 41 Rule 23 read with Rule 23-A of C.P.C. Learned Judge was expected to deal with all the aspects in the matter; instead of remanding the said RCS No.2/1997 for fresh decision. The above referred observations of the learned District Judge are surely out of the context to the record and call for interference. The order is set aside. The 4 AO 17 of 08 substantial question of law formulated is answered in favour of the appellant. Learned District Judge shall decide the appeal ( Civil Appeal No.24/2003) on its merits and will answer all the controversies, including one regarding status of the appellant to claim possession of the property. The observations are prima facie in nature. The learned Judge shall independently evaluate the evidence. Appeal From Order allowed to the extent as above. No costs. Civil Application disposed of. (K.U.CHANDIWAL) JUDGE ... AGP/17-08ao