NEEMABAI Vs. GYANBAI

JUDGEMENT

(1.) This is a plaintiff's miscellaneous appeal under O. 43, Rule 1(u) of the Code of Civil Procedure, against the order dated 11-3-1991 of remand passed by the lower appellate Court in Civil Appeal No. 91 A/88 preferred against the ex parte judgement and decree dated 29-11-75 passed in Civil Suit No. 22A/74 by Civil Judge Class-I, Vidisha.

(2.) The material facts leading to this appeal are thus : plaintiff instituted a suit for specific performance against the respondents No. 1 and 2 on the averments that the father of the respondents No. 1 and 2, Umrao Singh entered into a registered agreement to sell on 13-6-67 in respect of the agricultural suit land, but prior to execution of the registered document of same Umrao Singh died, hence, when the respondents did not execute the sale deed, the plaintiff instituted the suit for specific performance. It is stated by the plaintiff that during the pendency of the suit, he was dispossessed, hence the relief of restoration of possession was also claimed after amending the plaint. On 24-5-1975, one of the respondents, i.e., Gulabbai transferred her share in the land to respondent Nirpat Singh. The suit was contested by the two respondents by filing written statement taking a defence that Umrao Singh was not the owner of the suit land and the land was owned and possessed by one Barelal, therefore, Umrao Singh was having no interest, right or title in the suit land and agreement to sell is ineffective. The trial Court on the written statement so filed framed as many as 8 issues.

(3.) After transfer, on 20-9-75 counsel for defendants No. 1 and 2 pleaded no instructions, hence, the trial Court proceeded ex parte and recorded ex parte evidence on 11-11-75 and fixed the case for arguments on 17-11-75. After hearing arguments, the case was fixed for delivery of judgement on 25-11-75. The purchaser pendente lite moved an application under Order I, Rule 10, C.P.C, on 24-11-75 for impleading him as party, that was dismissed in default of the applicant Nirpat Singh, who again on 26-11-75 applied afresh, which was dismissed after hearing on merits on 29-11-75, and on the same day the trial Court decreed the suit for specific performance and restoration of possession without recording separate finding on each issue so framed.