HIRA SINGH Vs. ISHAR SINGH AND ORS.

JUDGEMENT

(1.) THIS judgment will dispose of three appeals (Regular Second Appeals Nos. 402, 556 and 591 of 1963) which arise out of the same facts and have actually been dealt with together by the Courts below.

(2.) THE facts giving rise to this controversy may briefly be stated. Sucha Singh, sometime in 1919 sold 86 kanals and 5 marlas of land in favour of Hira Singh for a sum of Rs. 4.000. Baggu Singh, father of Ishar Singh, etc., Plaintiffs, brought the usual declaratory suit challenging the alienation. Baggu Singh, it may be mentioned, was the uncle of the vendor Sucha Singh. The trial Court partly decreed the suit by declaring a valid charge on the land to the extent of Rs. 1,200; this charge was on appeal raised by the learned District Judge, Ferozepur to Rs 1,300 on 16th October. 1920. Hira Singh, vendee sometime later mortgaged the land in favour of Mukhtiar Singh. On Sucha Singh's death which occurred in 1961 the sons of Baggu Singh; brought the present suit for possession. A similar suit was also brought by Kartar Kaur, the daughter of Sucha Singh. The trial Court dismissed the suit of Ishar Singh and others, sons of Baggu Singh, and decreed the suit of Kartar Kaur.

(3.) THE first point raised by Shri N.L. Dhingra in R.S.A. 402 of 1963 can be disposed of very briefly. He has contended that in lieu of 86 kanals and 5 marlas during consolidation proceedings only 63 kanals and 8 marlas have been allotted, with the result, that it was only this area which should have been decreed in favour of the decree -holder. This point is covered by ground No. 2 in the memorandum of appeal in this Court. The grievance which has been stressed with force is that by means of amendment of the pleadings this point was brought out but has not been tried by the Courts below. The settlement of issues has accordingly also been assailed. It is obvious that this point has not been urged in the lower appellate Court and I find from the grounds of appeal taken in the lower appellate Court that this point was not agitated there. I am, therefore, disinclined to entertain this point on second appeal. As a matter of fact it was for the Appellant to have obtained a proper issue on the pleadings and to have sought trial of this plea. Having not done so, it is too late to ask this Court on second appeal to send the case back for framing a fresh issue for trial on a point requiring evidence.