TEKA Vs. RAM PHAL

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 11.1.1980 passed by the Additional District Judge, Rohtak, whereby appeal filed by the defendant-respondents against the judgment and decree dated 11.1.1979 has been allowed and the suit of the plaintiff- appellant dismissed.

(2.) THE plaintiff-appellant filed a suit for partition of the abadi land against the defendants under Order 1, Rule 8, Code of Civil Procedure. The defendants filed a written statement admitting the claim of the plaintiff. Accordingly, a preliminary decree for partition of the suit land was passed on 8.12.1967 and Shri Ram Sarup, retired Patwari, was appointed Local Commissioner to effect partition according to the preliminary decree. The preliminary decree was not challenged by any one and has, thus, become final.

(3.) AGGRIEVED by the said decree, the defendant-respondents filed an appeal before the Additional District Judge, Rohtak. The grievance projected in the appeal was that the objections had wrongly been rejected. During the course of appellate proceedings, the plaintiff-appellant raised the question of limitation and prayed that the appeal was liable to be dismissed being barred by time. The lower Appellate Court duly noticed the ground about wrongful rejection of the objections of the defendants and also the preliminary objection raised by the plaintiff-appellant about the appeal being barred by time, yet no finding on these two issues was recorded. On the other hand, it went into the question as to whether the land in dispute could be partitioned or not. Relying on the provisions of Section 2(g)(4a) of the Punjab Village Common Lands (Regulation) Act, 1961, it recorded a finding that the land in question vested in the Gram Panchayat and, therefore, the suit for partition of the village abadi at the instance of the proprietors was not maintainable. Accordingly, the suit of the plaintiff was dismissed on this sole ground.