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2011 DIGILAW 1989 (HP)

Vibhu Nandan v. Jai Parkash

2011-04-04

V.K.AHUJA

body2011
JUDGMENT V.K. Ahuja, J. The original appellant Smt.Asha had filed the present regular second appeal under Section 100 of the CPC against the judgment and decree of the court of learned District Judge, Sirmaur at Nahan, dated 18.8.2000. 2. The appeal was admitted on the following substantial question of law: “Whether the Ld. Court below has erred in law in brushing aside the documentary evidence i.e. the Record of Rights wherein the Appellant/plaintiff has been shown to be in exclusive owner in possession of the ancestral house even after she sold some portion to one Satbir. 3. It is claimed that the original appellant Smt.Asha, now represented by her legal representatives, had sold part of the land in favour of the appellant Ila Pandey, vide sale deed dated 18.3.2005. During the course of arguments, it has been submitted by the learned counsel for the original appellant Asha that the whole of the property had not been sold in favour of vendee Ila Pandey and she has some of the property left in her name in her share and the appeal had not become infructuous before the learned District Judge. 4. A perusal of the impugned judgment passed by the learned District Judge shows that he had simply observed that since the original appellant Asha had already sold her share, therefore, she had no right to maintain the suit for injunction. This has been submitted to be incorrect as per the submissions made by the learned counsel for the appellant and the vendee Smt.Ila Pandey. The learned Appellate Court had not considered the question as to whether still the right of the appellant subsists since she has some property in her name also. 5. Accordingly, the case is remanded to the learned District Judge, Sirmaur at Nahan, who shall consider the question afresh as to whether the original appellant Asha had some interest left in the property or not and as to whether she could maintain the suit for an injunction or not. This question shall be considered alongwith other questions arising in the appeal and the appeal shall be disposed of afresh by the learned District Judge. The impugned judgment and decree, dated 18.8.2000, is set aside. The parties through their counsel are directed to appear before the learned District Judge, Sirmaur at Nahan on 10.5.2011. This question shall be considered alongwith other questions arising in the appeal and the appeal shall be disposed of afresh by the learned District Judge. The impugned judgment and decree, dated 18.8.2000, is set aside. The parties through their counsel are directed to appear before the learned District Judge, Sirmaur at Nahan on 10.5.2011. The Registry is directed to send the records of the case forthwith so as to reach the Court well before the date fixed. 6. In view of the above, the appeal stands disposed of, so also the pending application(s), if any.