ONKAR PARSHAD Vs. LALTA PARSHAD

JUDGEMENT

(1.) This appeal under clause 10 of the Letters Patent is directed against the order of the learned Single Judge of this Court, who dismissed the Regular Second Appeal in limine, but granted certificate for leave to appeal under Letters Patent. A preliminary objection was taken that in this case after the Regular Second Appeal had been dismissed on 21st November, 1967, in limine there was a review application which was again dismissed on 12th January, 1968. Thereafter, an application was made for grant of a certificate which was granted on 8th February, 1968. The argument of the learned counsel for the respondent was that once a review application was filed no appeal lay. He has not been able to support his contention by any authority. We, however, do not see how the right of appeal of a party is taken away by the mere fact that he makes an unsuccessful approach to persuade the Court to review the decision. We, therefore, find no force in the preliminary objection.

(2.) So far as the merits of the case are concerned, two points were argued. To appreciate these points it is necessary to give briefly the facts which gave rise to the case. One Jawala Parshad had eight sons. They included Maha Maya Parshad deceased and the present two plaintiffs, Lalta Parshad, plaintiff No. 1 and Jog Maya Parshad plaintiff No. 2. Plaintiff Nos. 3 to 6 are the sons of Maha Maya Parshad. Out of the other five sons names of Joginder Parshad and Onkar Parshad need only be mentioned. Onkar Parshad defendant No. 8 is the main contesting defendant in this litigation. It appears that the family owned considerable joint Hindu family property for the partition of which the matter was referred by the parties to an arbitrator who gave his award in the year 1941 which was got registered on 7th January, 1942. From the above it is clear that the parties accepted this award. They appeared before the Registrar and got it registered and there is also evidence that subsequently Onkar Parshad filed a suit in which he proceeded on the basis of the award.

(3.) The property in dispute was allotted to the plaintiffs. Somewhere or the other a part of this property was sold by Jagdish Parshad to one Sohan Lal before the year 1949. Sohan Lal brought a suit in 1949 against Onkar Parshad as Onkar Parshad was considered to be owner in possession and in that civil suit in 1949 against Onkar Parshad as Onkar Parshad was considered to be owner in possession and in that civil suit Onkar Parshad inter alia put forward the award in defence and on the basis of this award it was held by the Court that under the award the property which was sold by Jagdish Parshad did not belong to him at all and consequently Sohan Lal had no title in the property. That suit was consequently dismissed on 18th January, 1951, copy of which is on the record, Exhibit P.W. 7/1. The suit out of which the present appeal has arisen was filed on 31st March, 1964 by the plaintiffs claiming a declaration that they were owners in possession of the land in suit. The Court found on a preliminary issue that the plaintiffs were not in possession. The plaint was then amended and claim for possession was also added. The three issues in the case were as follows :-