SHER SINGH KAHAN SINGH Vs. S AJMER SINGH

JUDGEMENT

(1.) This revision petition arises out of a case pending in the Court of Sub Judge First Class, Patiala. Both sides are agreed that the property which is the subject matter of the suit belonged to one Sant Jawala Singh. The Plaintiffs claim the property on the ground that one of them is the collateral of Sant Jawala Singh and the other is his Gurbhai and they are both entitled to the property in preference to-the Defendants who have taken wrongful possession of it.

(2.) It cannot be denied that issues Nos. 5 and 6 are purely questions of law and if these issues are found in favour of the Plaintiffs there will be no necessity for the parties to examine evidence about the execution of the will. This being the case I am of the opinion that the Subordinate Judge was bound to apply Rule 2 of Order 14 and to postpone even the settlement of other issues until the said issues were determined. Since in this case other issues had been framed, examination of evidence on the other issues should at least have been postponed. Two objections were" raised before me by Mr. Lachhman Dass counsel for the Respondents. One is that the decision of issues Nos. 5 and 6; would prejudice the decision of issue No. 3. I cannot understand how this result can follow. Issue No. 3 is, whether the will of Jawala Singh has been approved by His Highness Maharaja of Patiala and this has no connection 'whatsoever with the fact whether or not the decision of the Supreme Court operated as res judicator. The issue was raised because the 'Defendants pleaded that since His Highness the Maharaja of Patiala approved the will that approval removed all the defects in the will if there were any. Since this question was a mixed 1 question of law and fact any finding that the . Court might give on issue No. 6 will not affect it at all.

(3.) The other objection raised by Mr. Lachhman Dass is that even if the Court holds that the decision of the Supreme Court regarding the ..genuineness of the will is res judicata between the parties it cannot finish the case because the Plaintiffs in order to substantiate their claim for possession of the said property will have to prove that one of them was the collateral and the other the Gurbhai of the deceased and for this evidence shall have to be taken. This is no doubt correct but Rule (2) is not confined to those cases in which determination of issues of questions of law is sufficient by itself to conclude the case. The words of the Rule are: