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2006 DIGILAW 1294 (PNJ)

Tulshi Dass v. Ishwar Dass

2006-03-27

VINEY MITTAL

body2006
Judgment Viney Mittal, J. 1. The suit filed by the plaintiff-appellant Tulshi Dass, was for declaration to the effect that he is joint owner in possession along with defendants in equal share of the property marked ABCD bearing municipal No. B-VIII 268, consisting of three shops, two rooms,one kitchen, courtyard, stairs verandah on the ground floor and two rooms Hall with verandah, one kitchen on the first floor. A further prayer was made for separate possession of the suit property by way of partition. 2. The suit was contested by the defendants. The defendants claimed that the property in question was exclusively owned by them and the plaintiff had ceased to have any interest in the suit property. The learned trial court vide judgment dated November 29,1997 decreed the suit filed by the plaintiff. 3. An appeal was filed by the defendants before the learned first appellate court. The learned first appellate Court vide its order dated march 9,2001 framed two additional issues and after setting aside the judgment and decree of the learned trial Court had remanded the case to the learned trial court by permitting the parties to lead evidence on the aforesaid two additional issues and re-decide the case. The aforesaid order dated March 9,2001 has been assailed by the plaintiff-appellant by way of present appeal. 4. Have heard learned counsel for the parties. It is not in dispute that whereas the plaintiff had claimed joint ownership of the suit property, the defendants had claimed exclusive ownership thereof by taking pleas to that effect in the written statement. 5. The learned trial court had framed the following six issues in this regard: "1. Whether the plaintiff and defendants are in joint owners in possession of the suit property in equal shares under the Hindu succession act OPP 2. Whether the plaintiff is entitled to get the suit property partitioned OPP 3. Whether the family settlement amongst the plaintiff and defendants ever took place in the year 1981, if so its effect ?opd 4. Whether the plaintiff has no right title or interest in the suit property OPD 5. Whether the suit of the plaintiff is not maintainable in the present form OPD 6. Relief. It is apparent from the perusal of issue No.1 that the aforesaid issue covered completely the controversy between the parties. Whether the plaintiff has no right title or interest in the suit property OPD 5. Whether the suit of the plaintiff is not maintainable in the present form OPD 6. Relief. It is apparent from the perusal of issue No.1 that the aforesaid issue covered completely the controversy between the parties. The parties had led evidence in support of their respective claims on the aforesaid issue. 6 Further issue No.3 was with regard to the plea taken by the defendants that a family settlement had taken place amongst the plaintiff and defendants in the year 1981. The parties had led evidence on the aforesaid issue as well. Similarly issue No.4 deals with the title of the plaintiff to the suit property. It is apparent from the perusal of the record that the parties had led their evidence on the aforesaid issue also. In these circumstances, the learned trial court had dealt with the entire evidence led by the parties and had decreed the suit filed by the plaintiff. From the perusal of the facts, it is apparent that the parties had understood their case fully and led evidence. Mere framing the two issues could not have justified the setting aside of the judgment and decree of the learned trial court and remanding the case back to it for fresh decision by permitting the parties to lead their evidence on the aforesaid two additional issues. The aforesaid issues additionally framed by the learned first appellate court are wholly unnecessary and are also covered by the issues already framed by the learned trial court. Consequently, order dated March 9,2001 passed by the learned first appellate is set aside. 7. Consequently,The present appeal is allowed. Order dated march 9,2001 passed by the learned first appellate court is set aside. The case is remanded back to the learned first appellate court to re-decide the controversy on merits of the case on the basis of the issues already framed and on the basis of the material already available on the record. The parties through their counsel are directed to appear before the learned first appellate Court on May 1,2006. 8. Before parting with this order it must be noticed that if an application for additional evidence is filed by any of the parties before the first appellate court, then the same would be decided by the appellate court in accordance with law. 8. Before parting with this order it must be noticed that if an application for additional evidence is filed by any of the parties before the first appellate court, then the same would be decided by the appellate court in accordance with law. A copy of this order be given dasti on usual charges.