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2014 DIGILAW 1620 (HP)

Sadhu Singh v. Mohinder Singh

2014-11-12

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. This judgment shall dispose of the present appeal and also connected one involving similar questions of law and facts for adjudication. 2. As a matter of fact, it is the plaintiffs, who are in second appeal before this Court in these appeals. Plaintiffs are common; however, the defendants are different in both the appeals. 3. In this appeal (RSA No. 193 of 2014) the subject matter of dispute is land entered in Khata Khatauni No. 25/118, Khasra No.300, measuring 1045 square meters, situated at Mauza Shubkhera, Tehsil Paonta Sahib, District Sirmaur, H.P. Plaintiffs claim themselves to be owners-in-possession of the suit land. Similarly, in the connected appeal (RSA No. 254 of 2014), they claim themselves to be the owners-in-possession of the land entered in Khata Khatauni No. 25/117, Khasra No.299, measuring 892.95 square meters, situated at Mauza Shubkhera, Tehsil Paonta Sahib, District Sirmaur, H.P. The predecessors of the plaintiffs had family relations with one Gita Ram S/o Shri Chuni Lal, a rich and influential person having business at Paonta Sahib, therefore, their predecessors had given land, the subject matter of dispute in both suits, to said Shri Gita Ram, on license basis. Said Shri Gita Ram started cultivation of the suit land through S/Shri Sohan Singh and Arjun Singh. They managed the entries of the suit land in their names irrespective of having no right, title and interest therein and are now cultivating the suit land. 4. Learned trial Court on the completion of the pleadings of the parties and holding full trial after framing issues, ordered to return the plaint to the plaintiffs for want of jurisdiction with a direction to adjudicate the matter before competent authority i.e. Assistant Collector 1st Grade-cum-Land Reforms Officer, Paonta Sahib vide judgment dated 24.7.2012. The plaintiffs instead of opting to submit to the jurisdiction of Assistant Collector 1st Grade-cum-Land Reforms Officer Paonta Sahib, had assailed the judgment passed by the trial Court in appeal under Order 43 Rule 1 (a) CPC. The same before learned lower appellate Court was initially registered as Civil Misc. Appeals, however, subsequently were re-registered as civil appeal Nos.3-N/13 of 2014/12 and 2-N/13 of 2014/12. 5. Learned Lower appellate Court on reappraisal of the judgment passed by the trial Court has partly decreed the suit and also drawn the decree sheet accordingly. The same before learned lower appellate Court was initially registered as Civil Misc. Appeals, however, subsequently were re-registered as civil appeal Nos.3-N/13 of 2014/12 and 2-N/13 of 2014/12. 5. Learned Lower appellate Court on reappraisal of the judgment passed by the trial Court has partly decreed the suit and also drawn the decree sheet accordingly. This has led in filing these appeals under Section 100 of the Code of Civil Procedure for quashing the same. 6. On behalf of the respondents question of maintainability of these appeals has been raised at the very outset. Learned counsel representing the appellants-plaintiffs is fair enough in conceding that against an order of return of plaint, the only remedy available is to have filed a Civil Misc. Appeal under Order 43 Rule 1 (a) of the Code of Civil Procedure. Not only this, according to her, the plaintiffs even preferred appeals under Order 43 Rule 1 (a) CPC against the judgment passed by the trial Court qua return of the plaint in the lower appellate Court, which, however, were entertained and registered as civil appeals and decided vide judgment and decree under challenge in these appeals. Learned counsel is again fair enough in conceding that the second appeal is not maintainable, however, she had to file these appeals only on account of lower appellate Court having entertained the appeals preferred before it as civil appeals and drawn decree sheet also. 7. Mr. R.K. Gautam, learned Senior Advocate, representing the respondents-defendants does not dispute the submissions so made on behalf of the appellants-plaintiffs and rightly so because against the judgment whereby the trial Court has ordered to return the plaint to the plaintiffs for agitating the matter in issue before appropriate authority, appeal under Order 43 Rule 1 (a) was only maintainable and not an appeal under Section 96 of the Code of Civil Procedure as there was no decree drawn by learned trial Court being not required for the reason that the suit was neither decreed nor dismissed and rather plaint was ordered to be returned to the plaintiffs. 8. In view of what has been said hereinabove and also that irrespective of the appeals preferred under Order 43 Rule 1 (a) CPC and even initially registered also as Civil Misc. Appeals could have not been entertained as civil appeals under Section 96 CPC nor any decree passed. 8. In view of what has been said hereinabove and also that irrespective of the appeals preferred under Order 43 Rule 1 (a) CPC and even initially registered also as Civil Misc. Appeals could have not been entertained as civil appeals under Section 96 CPC nor any decree passed. Learned lower appellate Court has, therefore, not only committed irregularity but illegality also while entertaining the appeals preferred against the judgment passed by trial Court as Civil Appeals and drawn decree sheet also. The appropriate course available to the lower appellate Court would have been to entertain and treat the appeals as Civil Misc. Appeals and in the event of the order passed by the trial Court qua return of the plaint having been found not legally sustainable, to have remanded the cases for decision, in accordance with law. Decreeing the suit vide judgment and decree under challenge in these appeals, the lower appellate Court has deprived the parties on both sides from their valuable right of filing first appeal before learned lower appellate Court. 9. The judgment and decree under challenge in both appeals are thus not legally and factually sustainable. The same are hereby quashed and set aside and the case remanded to learned lower appellate Court to treat the appeals preferred by the plaintiffs against the order of return of plaint passed by the trial Court in both suits, under Order 43 Rule 1 (a) CPC as Civil Misc. Appeals and decide the same afresh, in accordance with law, as expeditiously as possible, but not later than the quarter ending March 31, 2015. Parties through learned counsel representing them are directed to appear before the lower appellate Court on 29th November, 2014. The record be sent back forthwith so as to reach in the lower appellate Court well before the date fixed. Both the appeals are accordingly allowed and finally disposed of. Pending applications, if any shall also stand disposed of. 10. No order so as to costs.