SHER SINGH Vs. BAGHERA SINGH AND OTHERS

JUDGEMENT

(1.) The appellant-plaintiff is aggrieved of the impugned judgments and decrees rendered by both the Courts below whereby the suit claiming following relief has been dismissed:-

(2.) Mr. Kanwal Goyal, learned counsel appearing on behalf of the appellant submitted that the aforementioned suit was filed on the premise that the property at the hands of Naseeb Kaur was ancestral as some other property bearing killa No. 242//16(8-0),17(7-13)24(2-12)25(4-7)243//20/2(0- 12)21/1(0-8) measuring 23 kanals 12 marls situated at village Mehlan was previously sold and later on, the suit property described in the head note of the plaint was purchased in the name of defendant No. 5. Therefore, the plaintiff had 1/6th share and the distribution of the property in favour of the sons giving respective shares vide transfer deed dated 14. 10. 2008 by defendant No. 5 was not in equal proportion, though the appellant-plaintiff also got some piece of land. In fact, the property had already been partitioned and roznamcha was entered on 29. 09. 1998. For the reasons best known, the counsel appearing for the plaintiff did not place on record/prove any evidence with regard to the aforementioned family partition, therefore, it has seriously prejudiced right of the plaintiff for adjudication of the lis and in this backdrop of the matter, the application under Order 41 Rule 27 CPC has been preferred.

(3.) He further submitted that during the pendency of the appeal before the lower Appellate Court, an application under Section 151 (Annexure A-5) was filed vide which the judgment dated 10. 05. 2011 rendered by the District Judge, Sangrur preferred against the judgment and decree of the trial Court dated 12. 06. 2010 in Civil Suit No. 591/2004 titled as "Jagjit Singh VS. Drashan Singh and others" sought to be placed on record wherein Jagjit Singh, who was the plaintiff and defendant No. 4 in the present suit, had sought to place on record a memorandum of partition dated 29. 09. 1998 but the same was not allowed despite the fact that cognizance of the same was taken. Though the nomenclature of the provisions of Section 41 Rule 27 CPC was not mentioned but it basically amounted to placing on record additional evidence and therefore, the lower Appellate Court was in obligation to decide the application along with the appeal and having failed to do so, in view of the settled law, the matter requires to be remitted.