IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.426 of 2003 Smt. Nagina Devi, Wife of Shashikant Mishra and daughter of Laxmikant Mishra deceased, resident of village Manwa, P.O. – Manwa parsi, via – Narkatiaganj, P.S. – Shikarpur, Tappa Jamhah, District – West Champaran. ……. Plaintiff – Respondent 1st party- Appellant Versus 1. Devendra Kant Mishra, Son of Laxmi Kant Mishra deceased. Resident of village – Katgharwa, P.O. – Narkatiaganj, P.S. – Shikarpur Tappa Jatbauli, District – West Champaran. …….. Defendant 1st party-appellant-Respondents 1st set. 2. Smt. Birza Devi, Wife of Udainarayan Pandey and daughter of Laxmikant Mishra deceased, resident of village Satwaria, P.O. and P.S. – Chanpatia, Tappa Jambauli, District –West Champaran. 3. Smt. Tara Devi, Wife of Shambhunath Mishra and daughter of Laxmikant Mishra deceased, resident of village – Dharampur, (Sathi) P.S. – Sathi, Tappa Jambauli, District – West Champaran. ………. Defendant 2nd party – Respondent 2nd party – Respondents 2nd set. ---------------------------------- 15 9/09/2011 Heard Smt. Namrata Mishra, learned counsel for the appellant. The present appeal has got a checkered history. Initially a Second Appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as C.P.C.) was preferred against the judgment dated 25th August, 2003 passed in Title Appeal No. 55 of 1997 by the 7th Additional District Judge, West Champaran, Bettiah. By the said judgment the learned Lower Appellate Court while setting aside the judgment and decree passed by the Sub Judge I, Bettiah in Partition Suit No. 46 of 1983 had remanded back the matter to the lower court for recording fresh finding on the basis of evidence already on record in accordance with provision of Hindu Law and Hindu Succession Act. Since the maintainability of Second Appeal was questioned, learned counsel 2 for the appellant by order dated 13/11/2003 was allowed to convert the Second Appeal into a Miscellaneous Appeal under Order XLIII Rule 1(U) of the C.P.C. Despite the fact that by the impugned judgment learned Lower Appellate Court while setting aside the judgment and decree passed by Sub Judge I, Bettiah had remitted back the matter for recording fresh finding on the basis of evidence already on record, due to latches mainly on the part of appellant the present appeal dragged for a long period. Before this court, at least on two earlier occasions, the appeal was dismissed due to non-prosecution. However, at subsequent stage, the appeal was directed to be restored to its original file after allowing the restoration petition vide order dated 01.10.2008 passed in MJC No. 1595 of 2008 and vide order dated 21.4.2010 passed in MJC No. 1841 of 2009. Brief fact of the case is that the plaintiff / appellant had filed a suit for partition vide Partition Suit No. 46 of 1983 claiming ¼ share in the property of Laxmi Kant Mishra. It was pleaded that father of Laxmi Kant Mishra namely Rambaran Mishra died in the year 1949 leaving behind him only son namely Laxmi Kant Mishra who also died leaving behind him only son i.e. defendant 1st party/respondent 1st set and three daughters out of which one is the plaintiff and other two have been arrayed as defendant 2nd party/respondent 2nd set in the present appeal. It was claimed that her (plaintiff’s) father Laxmi Kant Mishra had acquired certain properties out of his own income and remained in exclusive 3 possession of the same and died in the year 1966 leaving behind the suit property and suit properties were in jointness. Since defendant 1st set was not managing the property in proper way, the plaintiff /appellant filed suit for partition claiming ¼ share in the suit property. Before the court below other two sisters of the appellant supported the case of the defendant 1st set/respondent no. 1. The defendant claimed that the suit properties were not self acquired property but it was acquired from the income of the joint property, and as such, claim of the plaintiff for ¼ share was not sustainable. The defendants had further claimed that other two sisters had already surrendered their share in favour of defendant 1st set /respondent no. 1. However, the learned Sub Judge decreed the suit granting ¼ share to the plaintiff /appellant against which the defendant 1st set / respondent no. 1 preferred an appeal vide Title Appeal No. 55 of 1997 and the learned 7th Additional District Judge, West Champaran, Bettiah by the impugned judgment while setting aside the judgment and decree passed by learned Sub Judge remitted back the matter to the court below for fresh adjudication on the basis of evidence already brought on record in accordance with Hindu Law as well as Hindu Succession Act. Smt. Namrata Mishra, learned counsel for the appellant has tried to impress upon the court that the learned lower court has committed serious error of record. It was pointed out that despite the fact that plaintiff was examined as a witness before the Trial Court, the learned Lower Appellate Court has recorded that plaintiff was 4 not examined and in her place her husband was examined as PW 1. According to Smt. Mishra it was serious error of record and on this score only the Lower Appellate Court judgment is liable to be set aside. It was further argued that the learned Trial Court considering and appreciating all the evidences on record had rightly allowed ¼ share of the suit property which were self acquired property of her father. The learned Lower Appellate Court has recorded otherwise, and as such, it was submitted that judgment of the Lower Appellate Court is not sustainable in the eye of law and is liable to be set aside. Be that as it may, fact remains that the impugned judgment was passed long back in the year 2003. By the said judgment the learned Lower Appellate Court had only remitted back the matter to the Trial Court for adjudicating on the basis of evidence already on record in accordance with provisions contained in the Hindu Law as well as Hindu Succession Act. By the said judgment the learned Lower Appellate Court has virtually not decided any issue but asked the Trial Court to decide the matter regarding appropriate share of the parties. The learned counsel for the appellant at the time of hearing was not firm on the fact as to whether after remand any final order was passed or not. Only a vague oral submission was made that matter appears to be still pending. The court is of the opinion that in the present case since the Lower Appellate Court had only remitted back the matter to the 5 court below for fresh adjudication on the basis of evidence already on record which was passed in the year 2003, after lapse of such a long time in 2011 it would not be appropriate to interfere with the said judgment, and as such, the impugned judgment requires no interference at this stage and the present appeal stands dismissed. Praful ( Rakesh Kumar, J.)