MAHESH SINGH Vs. RAJ KUMAR SINGH

JUDGEMENT

(1.) THIS second appeal has been filed by Mahesh Singh against the judgment and decree dated 2-4-1993 passed by learned Addi­tional Commissioner, Lucknow, in which he has set aside the order of the trial Court dated21-4-1981.

(2.) IN brief the facts of the case are that before the trial Court Raj Kumar Singh and Mahesh Singh had filed two separate suits under Section 229-B of UPZA and LR Act. Both these suits were decided by a single order dated 21-4-81 in which learned trial Court has decreed the suit of Mahesh Singh. Mahesh Singh has filed suit on the ground that Hari Bux Singh died in the year 1974 leaving only heir Mahesh Singh, plaintiff as his brother and no issue was born to Hari Bux Singh and defendant No. 1 is the son of Bhagwan Bux Singh who is residing at Sitapur and Bachchu Devi has married with Bhagwan Bux Singh before 15 years back and he has no relationship with Hari Bux Singh and defendant No. 1 has no concern with the property of Hari Bux Singh. Raj Kumar Singh has filed his suit on the ground that the disputed land was in the name of his father Hari Bux Singh and after the death of Hari Bux Singh he is the only heir and son and defendant No. 1 is disturbing in the peaceful possession of the plaintiff. The learned trial Court has decreed the suit of Mahesh Singh after framing four issues. It is clear from the perusal of the judgment of the trial Court that there is no specific finding on all issues separately and there is also no mention in the judgment that all the issues are being decided jointly. Both the suits of Mahesh Singh and Raj Kumar Singh were decided by a common judgment. The suit filed by Mahesh Singh was decreed but there is no mention in the judgment that suit of Raj Kumar Singh is being dismissed. The lower appellate Court has only allowed the appeal on the ground that burden of proving the remar­riage was on Mahesh Singh.

(3.) SECOND appeal is allowed ; the or­ders of the Courts below are set aside and the case is remanded back to the learned trial Court with a direction that he should decide the case afresh and these issues will be decided separately and a specific issue on the point of remarriage of Smt. Bach­chu Devi be framed and the parties be allowed to give specific evidence on this issue and after giving due opportunity of hearing to both the parties on this issue both the suits be decided in accordance with law in the light of the observations made above. Appeal allowed.