RAJ RANI Vs. PREM LATA

JUDGEMENT

(1.) THE appellants filed a suit for declaration that they are the owners of the land measuring 8 kanal 14 marlas and for correction of the entry in the column of ownership of the jamabandi for the years 1970 -71 and also in the subsequent jamabandi showing defendants no.1 to 3, namely, Telu Ram, Shiv Dutt and Krishan Dutt as co -sharers, whereas they had already sold their share. Defendant no.1 Telu Ram appeared in the suit and filed written statement admitting the claim of the plaintiffs but defendants no.2 and 3 contested the suit. The appellants also filed application for temporary injunction which was dismissed by the trial Court and while appeal against that order was pending, defendant no.1 Telu Ram died on 23.08.2004 and his widow Ram Piari and son Anil Kumar were impleaded in the said miscellaneous appeal. Allegedly, legal heirs of Telu Ram were served in the Civil Miscellaneous appeal No.15 of 2006 but they did not appear and the miscellaneous appeal was allowed restraining the defendants from alienating the suit property. The suit was decreed on 20.11.2009 which was challenged in appeal by defendants no.2 and 3. During the pendency of the appeal, both Ram Piari widow and Anil Kumar son of Telu Ram died. Thereafter, Neelam widow of Anil Kumar filed an application before the lower Appellate Court to amend the written statement already filed on behalf of Telu Ram and the admission made by Telu Ram was sought to be withdrawn. The application was dismissed by the lower Appellate Court on 04.11.2011. The said order was challenged by Neelam etc. by way of Civil Revision No.597 of 2012 and by the legal heirs of Shiv Dutt and Krishan Dutt by filing Civil Revision No.400 of 2012. Civil Revision No.400 of 2012 filed at the instance of legal heirs of Shiv Dutt and Krishan Dutt was dismissed but Civil Revision No.597 of 2012 filed by Neelam etc. was allowed by this Court on 28.01.2013. The lower Appellate Court, vide its impugned order dated 05.04.2013, held that the case requires de novo trial with the amended written statement to be filed by Neelam etc. Aggrieved against that order, the present appeal has been filed.

(2.) LEARNED counsel for the appellants has vehemently argued that the lower Appellate Court has misinterpreted the order of the High Court passed in Civil Revision No.597 of 2012, as a limited right was given to record the evidence of the parties while remanding the case, after framing the additional issues. It is also submitted that instead of setting aside the judgment and decree of the trial Court, the lower Appellate Court should have framed the additional issue and directed the trial Court to record evidence. In this regard, he has relied upon a decision of this Court in the case of Mohan Singh and another v. Amarjit Kaur @ Amarjit and others, 2009 1 ICC 830 and a judgment of the Supreme Court in the case of Smt. Bachahan Devi and another v. Nagar Nigam, Gorakhpur and another, 2008 2 RCR(Civ) 367 to contend that the lower Appellate Court should have recorded evidence and decided the case after framing additional issues.

(3.) ON the other hand, learned counsel for the respondents has argued that the true import of the order of this Court passed in CR No.597 of 2012 is the remand of the case to the trial Court because once the legal heirs of Telu Ram have been allowed to file the amended written statement, the issues are to be framed accordingly and the parties are to be allowed to lead evidence. In support of his submission, he has relied upon a decision of the Supreme Court in the case of Jegannathan v. Raju Sigamani and another, 2012 3 RCR(Civ) 233.