AZAD SINGH Vs. HOSHIAR SINGH

JUDGEMENT

(1.) It is presently common ground that the plaintiffpetitioner did raise a plea of adverse possession in the course of the replication which (replication) also constituted the reply filed by him to the claim statement filed by the defendantrespondent. The replication concededly being a part of the pleadings, the learned Trial Court could not have validly declined the plea filed by the plaintiff-petitioner for the framing of an additional issue on that averment of adverse possession.

(2.) It is, otherwise, common ground that the parties have already led evidence in respect of the additional issue aforementioned. The fact that the parties were allowed to adduce evidence in the absence of an issue does not bother us at this stage in the circumstances of the case, particularly when both the parties are agreeable to accept that evidence in the context of the issue of adverse possession. The learned counsel for the parties state that no further evidence is to be adduced by them in respect of the additional issue to be framed.

(3.) The petition shall stand allowed accordingly. The impugned order shall stand set aside. The learned Trial Court shall proceed to frame an additional issue on the controversy about adverse possession. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 10.03.2010. The additional issue shall be framed on that very date. The matter shall be adjourned thereafter for rebuttal evidence and arguments.