SHALINI SHARMA Vs. PREMLATA SHARMA

JUDGEMENT

(1.) This is a plaintiff's second appeal, where the plaintiff/appellant has given a challenge to the impugned judgments dtd. 8/8/2018, as rendered by the court of Civil Judge (Jr. Div.), Dehradun in O.S. No.221 of 2017, Smt. Shalini vs. Premlata and others whereby, by virtue of the judgment, which was rendered by the trial court the plaintiff/appellant's, suit was dismissed on the ground of a bar being created by Order 7 Rule 11(d) of C.P.C., to be read with Sec. 331 of the U.P. Zamindari Abolition and Land Reforms Act. Subsequently on a challenge being given to the said judgment of the Trial Court, by the plaintiff/appellant in an appeal under Sec. 96 of the Code of Civil Procedure, which was registered as Civil Appeal No.112 of 2018, Smt. Shalini Sharma vs. Premlata and others, the court of IIIrd Additional District Judge, Dehradun, too had dismissed the first appeal by the impugned judgment of 19/4/2019 and consequently has affirmed the finding and the reasoning, which had been recorded by the learned trial court vide its judgment of 8/8/2018. The second appeal when it was heard on admission stage, the second appeal was admitted on the substantial question of law; as was framed by this Court vide order dtd. 26/6/2019, which was to the following effect:-

(2.) This is the nature of the case, where the second appellate court while answering the substantial question of law has to maintain the delicacy and a precaution too, of not venturing into the merits of the matter where the question of jurisdiction is to be decided which relates to the sustainability of the suit preferred by the plaintiff/appellant. The precise argument of learned counsel for the plaintiff/appellant; was that the suit instituted by the plaintiff/appellant before the learned trial court on 28/7/2017, when the learned trial court was venturing on to the question, for attracting the provisions contained under Order 7 Rule 11(d) of C.P.C., it ought not to have ventured to decide the matter on the basis of the inter-se pleading raised between the parties and it was expected and it ought to have exclusively confined to the pleadings raised in the plaint itself. Secondly, he submits that since on the basis of the rival contentions, which were raised before the learned trial court; where the question of maintainability of the suit came into consideration and since as per plaintiff/appellant it was a disputed question, then in that eventuality, it was incumbent on the learned trial court to have referred the matter to be answered for by the court of Assistant Collector under Sec. 331(A) of U.P. Zamindari Abolition and Land Reforms Act.

(3.) During the course of argument, what has emerged and which remains undisputed and admitted by the counsel for the parties are that:-