BHAG SINGH Vs. NEK SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Single Judge in Suit No. 3 of 1985 decided on September 23, 1985 by which while deciding issue No. 1, the suit filed by the appellants was dismissed. It is submitted that the judgment impugned in this appeal is against law and facts which is required to be set aside. It has been contended in the alternative that the civil Court had no jurisdiction to pass the orders dated January 5, 1979 and March 3, 1980 which were the subject matter of the preliminary issue.

(2.) So far as the plea regarding jurisdiction of the Civil Court is concerned, it is conceded that the said plea was neither pleaded in the plant nor made ground of attack in the memo of appeal. The argument of the learned counsel, though attractive on the face of it is without any basis. In a civil Suit, the parties cannot be permitted to go beyond their pleadings and in the absence of specific pleadings, the appellants are estopped from raising the plea which is claimed to be a plea of law only. The argument of the learned counsel that the plea raised is purely a question of law is not acceptable. Such a plea could not be decided without affording the parties opportunities to lead evidence. The plea being a mixed plea of law and fact cannot be permitted to be raised at this belated stage.

(3.) Some of the facts relevant for properly adjudicating the pleas raised in this appeal are that after the death of one Amar Singh his estate was mutated in the name of Bhag Singh and others. Hazura Singh being aggrieved by the mutation and claiming to be the adopted son of the deceased, Amar Singh, filed a suit for possession alleging that Bhag Singh and others were not the heirs of Amar Singh and he being the adopted son of the deceased was entitled to the possession of the property. A part of the land had been mortgaged vide two separate transactions. The mortgaged were also impleaded as parties and the suit was decreed. The judgment and decree of the trial Court was set aside by the first appellate Court and on appeal the High Court vide its judgment dated September 25, 1970, restored the judgment and decree of the trial Court on July 31,1959. Nek Singh and others who were successors in-interest of Hazura Singh filed application for the execution of the decree dated September 25, 1970 which was resisted by Jagta-Judgment debtor-on the ground that as a result of the consolidation in the village, the land of Amar Singh bad amalgamated with his holdings and khasra Nos. mentioned in the decree were no longer available, the decree was not executable. The Executing Court dismissed the objection and the appeal preferred was dismissed by the first appellate Court. The matter was agitated in execution second appeal No. 1806/1974 at the instance of the judgment-debtor. During the pendency of the aforesaid appeal, this Court passed an order on January 5, 1979 and when thereafter the matter went back to the executing Court, the objections raised were dismissed holding that the judgment-debtors were entitled to Rs. 275/- being the mortgage money. Instead of challenging the order of the executing Court dated March 3, 1980, the judgment -debtor filed a separate suit in which the aforesaid two orders were challenged on the ground that the Courts were not competent to pass the orders and as the orders were challenged on the ground that the Courts were not competent to pass the orders and as the orders were with out jurisdiction, the rights of the plaintiff-appellant could not be adversely affect4d. On die pleadings of the parties, issues were framed on September 24,1980. The respondents filed an application for treating issue No. 1 as a preliminary issued which was dismissed by the trial Court; The appellants thereafter filed Civil Revision No. 753 of 1985 in this Court which was disposed of vide order impugned in this appeal transferring the suit itself to the files of the High Court.