SAT PAL Vs. GHOGHRI AND ANOTHER

JUDGEMENT

(1.) This is defendants' second appeal against whom the suit for declaration and possession has been decreed by both the Courts below.

(2.) One Bharta was the owner of the suit land. He died on September 29, 1976, leaving behind plaintiffs Nos. 1 and 2 as his only daughters. They filed the suit on the basis of their title which was contested on behalf of the defendants on the basis of the Will alleged to have been executed by the said Bharta in their favour. The Will was not produced, in original, in the trial Court. Application to produce the secondary evidence by way of a copy of the said registered Will was declined by the trial Court vide detailed order dated August 4, 1979. Revision against the said order of the trial Court was dismissed by this Court in limine without passing any speaking order. Ultimately, the plaintiffs' suit was decreed by the trial Court. In appeal, the defendants wanted to challenge the order of the trial Court dated August 4, 1979 also, declining their prayer for permission to lead secondary evidence of the alleged Will in their favour. According to the lower appellate Court the said order could not be challenged in appeal because the defendants had already gone to the High Court against the said order by way of revision, which admittedly, was dismissed in limine without passing any speaking order. The lower appellate Court dismissed the appeal on merits. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

(3.) The learned counsel for the appellants contended that since this Court had dismissed the revision petition against the order of the trial Court dated August 4, 1979, declining their prayer to lead secondary evidence of the alleged Will in their favour, in limine without passing any speaking order, they were entitled to challenge the said order of the trial Court in appeal against the judgment and decree of the trial Court, in view of the provisions of Section 105 of the Code of Civil Procedure (hereinafter referred to as the Code). In support of the contention, the learned counsel relied upon Karam Singh v. Jagta, 1982 AIR(P&H) 51.