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2006 DIGILAW 4427 (PNJ)

Ved Parkash v. Bhagirath Parshad

2006-11-29

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - The present appeal arises out of an order dated 21.12.2000 passed by the learned Additional District Judge, Muktsar, vide which the decree passed by the learned trial Court was set aside and the case was remanded back under Order 41 Rule 23-A of Civil Procedure Code with a direction to the lower Court to afford one more opportunity to the respondents herein to conclude their evidence and thereafter allow the petitioners reasonable time to lead their evidence and to decide the suit afresh. 2. The respondent-plaintiff had sought partition of suit land by claiming himself to be co-sharer in the suit property to the extent of 1/6th share while the petitioners were said to be owners of 5/6th share. It was also claimed that Kundan Lal, respondent No. 2 in the appeal before the lower Appellate Court had sold 1/2 share of the suit property to respondent Nos. 3 to 5 vide sale deed dated 13.10.1992. 3. The said suit was contested by the petitioners herein on a number of grounds and on the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiff is a co-sharer in the suit property ? If so, to what extent ? OPP 2. Whether the suit is not maintainable in this form ? OPD 3. Whether the suit is bad for non-joinder and mis-joinder of parties ? OPD 4. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction ? OPD 5. Whether the plaintiff is estopped to file this suit by his act and conduct ? OPD 6. Whether the suit is beyond limitation ? OPD 7. Whether the suit is barred by res judicata ? OPD 8. Whether the defendants have become owners by adverse possession ? OPD 9. Relief. 4. Vide order dated 9.5.1997, the learned trial Court was pleased to close the evidence of the plaintiff by passing the following order :- "No PW is present. In this case the plaintiff has already availed numerous opportunities to lead his evidence but has not examined even a single witness till today. Issues in this case were framed as back as on 10.6.1995. No reason has been given today as to why the evidence is not forthcoming. Even the plaintiff has not come present. In this case the plaintiff has already availed numerous opportunities to lead his evidence but has not examined even a single witness till today. Issues in this case were framed as back as on 10.6.1995. No reason has been given today as to why the evidence is not forthcoming. Even the plaintiff has not come present. The costs imposed for todays adjournment have also not been paid by the learned counsel for the plaintiff demanded by the defendant. As such, I do not find any justification for further adjournment of the case for the evidence of the plaintiff. As such, evidence of the plaintiff is closed by order. Arguments heard. Vide my separate detailed judgment of even date the suit of the plaintiff has been dismissed with costs. Decree sheet be prepared. File be consigned to the record. room." In view of the order referred to above, the suit of the plaintiff was dismissed. The learned lower Appellate Court came to the positive conclusion that the trial Court was justified in closing the evidence of the plaintiff- respondent by order. However, the learned lower Appellate Court came to the conclusion that it was not open to the trial Court to straightway resort to hearing of the arguments. The view of the learned Appellate Court was that the petitioners herein should have been allowed to lead evidence on the issues, onus of which was on the defendant-petitioner. In view of this, the learned Appellate Court came to the conclusion that the learned trial Court could not dispose of the suit by holding that Issues No. 2 to 8 had become infructuous and in view of this finding, ordered the remand of the case, as referred to above. However, while passing the remand order, it directed that opportunity be given to the respondent-plaintiff to lead evidence. This finding, on the face of it, cannot be sustained in view of the positive finding recorded by the learned lower Appellate Court that the order dated 9.5.1997 reproduced above was justified. Even otherwise, there could be no challenge to the said order, as admittedly, the plaintiff had failed to pay the costs imposed while giving adjournment for leading evidence. 5. Even otherwise, there could be no challenge to the said order, as admittedly, the plaintiff had failed to pay the costs imposed while giving adjournment for leading evidence. 5. The Honble Supreme Court in the case of Mahant Narayangiri Guru, Mahant Someshwargiri v. The State of Maharashtra and another, AIR 1977 Supreme Court 628 has been pleased to lay down as under :- "The plaintiffs suit was a suit for declaration of his title to the property in dispute. In order to succeed in the suit, the plaintiff sought to establish not only that the property in dispute was the private property of the deceased mahant but also that he was the duly appointed chela of the deceased mahant. Held that once a finding was arrived at that the property in dispute was endowment property and was not the private property of the deceased mahant and that finding was no longer open to challenge, the question of going into the other aspect as to whether the plaintiff appellant was or was not the duly appointed chela of the deceased mahant would not survive for decision." In view of the authoritative pronouncement of the Honble Supreme Court, it was not correct on the part of the lower Appellate Court to remand the case merely for recording a finding on Issues No. 2 to 8, once Issue No. 1 was to be decided against the plaintiff-respondent in view of the order dated 9.5.1997. Even if Issues No. 2 to 8 were to be decided against the petitioner, still the suit was to be dismissed by recording a finding on Issue No. 1 against the plaintiff-respondent. In light of what has been stated above, the order passed by the learned lower Appellate Court cannot be sustained. The appeal is allowed and the impugned order is set aside. The case is remanded back to the learned lower Appellate Court for decision on merits. Appeal allowed.