CHANDA SINGH Vs. IND KAUR ETC

JUDGEMENT

(1.) Chanda Singh has filed this letters patent appeal against the judgment and order of the learned Single Judge dated May 29, 1970. In order to appreciate and determine the controversy between the parties, it would be appropriate to notice a few salient features of the case. Daula Singh and Kaula Singh were owners of land measuring 34 Bighas, 9 Biswas and 11 Biswansis in equal shares. Chanda Singh plaintiff-appellant is the son of Daula Singh. Kaula Singh sold his half share measuring 17 Bighas, 9 Biswas and 11 Biswansis to Ram Singh husband of Smt. Ind Kaur defendant No. 1 for Rs. 800 by means of a registered deed dated July 6, 1910. Ram Singh in turn sold that land to Har Lal deceased father of defendants Nos. 2 to 4 and Smt Basanti widow of Karam Singh. Chanda Singh plaintiff-appellant filed a suit for declaration to the effect that the sale made by Kaula Singh to Ram Singh in the year 1910 would not affect his reversionary rights as the land was ancestral qua him and the sale was not for legal necessity. That suit was decreed and the decree was upheld right up to the High Court, as is evident from the judgment dated March 9, 1923, Exhibit P.1/A. It was held in that suit that the sale would not effect the reversionary rights of the plaintiff after the death of the alienor and accordingly a declaration was granted in his favour subject to payment of Rs. 475. Kaula Singh died on April 25, 1968, and the present suit for possession was filed by Chanda Singh on May 20, 1968. The suit was contested by the defendants on various grounds and, on the pleadings of the parties, several issues were framed. The trial Court decided all the issues in favour of the plaintiff and passed a decree for possession of the land measuring 16 Bighas 2 Biswas and 2 Biswansis and for the recovery of Rs. 960.38 P on May 21, 1969. Feeling aggrieved from the judgment and decree of the trial Court Smt. Ind Kaur and other defendants filed an appeal. The learned Additional District Judge, Ludhiana, arrived at a conclusion that proper issues were not framed on the pleadings of the parties and remanded the case back to the lower Court for fresh decision on the issues suggested by the learned counsel for the defendants which, according to the learned Judge, arose out of the pleadings of the parties. Feeling aggrieved from the judgment of the learned Additional District Judge, Ludhiana, Chanda Singh plaintiff filed S.A.O. No. 28 of 1970 in this Court which came up for hearing before D.S. Tewatia, J, who upheld the remand order but recast the issue, in the following terms :-

(2.) It was contended by Mr. Gandhi, learned counsel for the appellant, that the issue as framed by the learned Single Judge did not arise on the pleadings of the parties. In substance, the contention of the learned counsel for the appellant was that there had been no consolidation proceedings in the village and, as such, there was no occasion for the plaintiff to have established the identity of the land in dispute with the land for which a decree had been passed in his favour in the previous suit.

(3.) After hearing the learned counsel for the parties we are of the view that there is considerable force in the contention of the learned counsel for the appellant. The learned Single Judge was of the view that there might have been consolidation in the village and, as such, different khasra numbers might have been allotted to the defendants in lieu of the land which they held earlier and in respect of which the declaratory decree was passed. On this aspect of the matter it was observed by the learned Single Judge thus :-