MALKIAT SINGH Vs. SURJEET SINGH

JUDGEMENT

(1.) The plaintiffs are in appeal against the judgment dtd. 5/5/1992 passed by the Ist Appellate Court, allowing the appeal of the respondents no.1,2 and 4 (defendants no.1, 2 and 4). The primary ground of challenge raised before this Court is that the cross-objections filed by the plaintiffs against the partial decree of the trial Court dtd. 15/6/1989 have not even been noticed much less considered by the Ist Appellate Court.

(2.) Learned counsel for the appellants has submitted that in the present case, the present appellants (plaintiffs) had filed a suit for declaration to the effect that the plaintiffs were joint owners in possession of 2/3rd share of land measuring 12B-19B-5B (pukhta) comprised in khewat no.852, 850, 851, 591, khatauni no.1252, 1253, 1254, 1250, 1251, 892, 893, 894, 895, 896 and khasra Nos. 12831, 12832, 12833, 12820 min, 12830 min situated in the revenue estate of Killa Raipur, Tehsil and District Ludhiana as per jamabandi for the year 1981-82. It is submitted that a similar prayer was made with respect to one plot as well as one house, the boundaries of which were detailed in the plaint and a further prayer was made for permanent injunction restraining the defendants from interfering in the possession of the plaintiffs. It is further submitted that the plea taken by the plaintiffs in the suit was that the agricultural land in question was a Joint Hindu Family Ancestral Coparcenary property and the plot as well as the house in question had been purchased with the income derived from the Joint Hindu Family property. It was further averred in the plaint that defendants no.2 to 4, who were sons of defendant no.1 Surjeet Singh, were claiming that Gobind Singh, father of the plaintiffs and defendant no.1, had executed a Will on 10/6/1979 in their favour but it was submitted that the said Will was not genuine. It is argued that in the written statement, respondents claimed ownership of the properties in question on the basis of the said Will and it was denied that the property was Joint Hindu Coparcenary property. It is submitted that the trial Court had partially decreed the suit of the plaintiffs and instead of granting relief to the plaintiffs being joint owners in possession to the extent of 2/3rd share, had only granted relief declaring the plaintiffs along with defendant no.1 to be joint owners in possession of 3/4th share of the agricultural land. Defendants no.2 to 4 were held to be owners of agricultural land to the extent of 1/4th share and the house and the plot were also held to be the ownership of defendants no.2 to 4 on the basis of the aforesaid Will.

(3.) Learned counsel for the appellants has stated that respondents no.1, 2 and 4 (defendants no.1, 2 and 4) had filed an appeal before the Ist Appellate Court. It is submitted that since the present appellants were also aggrieved with the findings of the trial Court on several issues and also with the partial decree of the suit, they had filed cross objections before the Ist Appellate Court. A copy of the said cross objections, which have been referred to, has been annexed as Annexure A-4 with CM-7234-C-2024. It is submitted that a perusal of the zimni orders would show that the said cross objections were duly registered and notice was issued in the same but a perusal of the judgment of the Ist Appellate Court would show that neither the said cross objections have been mentioned in the head note of the judgment nor the factum of same having been filed has been recorded in the body of the judgment. It is submitted that the judgment of the Ist Appellate Court would show that the detailed cross objections filed have not even been remotely considered much less decided by the Ist Appellate Court and thus, the said cross objections have remained undecided. It is submitted that in such circumstances, the impugned judgment of the Ist Appellate Court deserves to be set aside on the said ground alone and the matter deserves to be remanded back to the Ist Appellate Court for fresh decision with a further direction to the Ist Appellate Court to decide the appeal fresh along with the cross objections filed by the appellants. In support of his arguments, learned counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in Dheeraj Singh vs. Greater Noida Industrial Development Authority & Ors. reported as 2023 SCC OnLine SC 768 and also on the judgment of the Hon'ble Supreme Court in Badru (since deceased) through Legal Representative Hari Ram and others vs. NTPC Limited (formerly National Thermal Power Corporation Limited) and others reported as (2019) 20 Supreme Court Cases 652.