FAUJA SINGH AND OTHERS Vs. JASWANT SINGH

JUDGEMENT

(1.) ONE Boor Singh son of Wadhawa Singh was owner of land measuring 1 Kanal comprised of Khasra No. 632. Ha died issueless. After his death, a dispute arose between the petitioners and Smt. Gopal Kaur respecting his inheritance. The plaintiffs claimed themselves to be the owners of the suit property on the basis of a will executed by Boor Singh whereas Smt. Gopal Kaur claimed the estates as the widow of the deceased. The trial Court accepted the claim of the widow but on appeal its judgment was reversed and the petitioners were declared owners of the suit property. Thereafter, they filed the present suit for possession of the suit property on the basis of ownership. The defendant contested the suit denied the execution of the alleged will by Boor Singh and claimed himself to be the owner of the suit property being a vendee from Smt. Gopal Kaur. On the pleadings of the parties, the following issues were framed: - -

(2.) According to the learned counsel for the petitioners, the remand order dated April 20, 1976 has to be understood in the light of the findings recorded in the judgment and as findings of the trial Court on none of the issues was either confirmed or set aside, the case is deemed to have been remanded only for trial of the additional issue and redecision thereafter. Reliance for this contention has been placed on a decision of the Supreme Court in Mohan Lal v. Anandibai : A.I.R. 1971 S.C. 2177. In that case the High Court had reversed the findings on certain issues and after setting aside the judgments and decrees of the Courts below, remanded the case to the trial Court for fresh decision on merits with advertence to remarks in its judgment. Consequently, it was argued by the learned counsel that making this order, the High Court had set aside all findings recorded on all the issues by the trial Court and the first appellate Court, while rejecting this contention of the learned counsel, the Court observed :

(3.) Faced with this situation, the learned counsel for the respondent urged that by the impugned order, the trial Court interpreted the remand order and allowed the parties to lead evidence on all the issues. It cannot be disputed that the trial Court had the jurisdiction to pass the impugned order and illegality or irregularity in the exercise of its jurisdiction having been pointed out, the said order would have not be open to challenge by way of petition u/s 115 of the Code. The argument is wholly misconceived. As found above, the case has been remanded for fresh trial on the additional issue only and the trial Court had no jurisdiction to reopen the issues already decided and allow the parries to lead evidence thereon. The impugned order is, therefore, clearly without jurisdiction.