GRAM PANCHAYAT, VILLAGE ISMAILPUR Vs. PAWAN SINGH

JUDGEMENT

(1.) PLAINTIFF -respondent's suit was dismissed by Subordinate Judge, Jagadhri vide order dated 28.2.1983. Learned Subordinate Judge gave categoric findings on issues No. 1 and 2 namely that plaintiff has failed to prove his ownership over the disputed site and has also failed to establish his ownership by way of adverse possession. He found issues No. 1 and 2 against the plaintiff. Plaintiff went in appeal. His appeal was allowed by Additional District Judge, vide order dated 11.3.1985. Additional District Judge, Ambala did not advert to any evidence at all so far as issues No. 1 and 2 are concerned which are vital issues in the case. He based his findings in appeal on judgment Ex. P-4 which had been passed in Civil Suit No. 670 of 1977 by Sub Judge IInd Class, Jagadhri, Judgment Ex. P-4 was rendered meaningless when it was appealed against and appeal was allowed to be withdrawn, as also the suit namely civil suit No. 670 of 1977. Findings recorded in judgment Ex. P-4 were of no consequence when the very suit in which the said findings had been given, was withdrawn. When the suit was withdrawn, it is as if that suit was never instituted. If it is taken that the suit was never instituted, no finding given there could operate so far as this suit is concerned. Since the findings of the Additional District Judge, Ambala on issues No. 1 and 2 rested on what had been decided by Sub Judge IInd Class, Jagadhri in civil suit No. 670 of 1977 which became non-existent, there is no option for this Court but to set aside the decree of the first appellate court and direct the first appellate Court to decide the appeal afresh. While deciding the appeal afresh, first appellate court shall take into account evidence led in this suit. It shall not take into account at all what had been decided in the earlier suit. First appellate Court shall discuss the entire evidence and then give findings thereon and decide the appeal. This appeal shall be heard by the first Additional District Judge, Jagadhri before whom the parties shall appear on 30.9.2000.

(2.) RSA allowed. Judgment and decree of the first appellate Court are set aside the case remanded to the first appellate Court for decision afresh in view of the above said observations. Appeal allowed.