BHAGWANA Vs. GODHA AND OTHERS

JUDGEMENT

(1.) This second appeal is directed against the judgment of Additional District Judge, Gurgaon, who accepting the appeal of the plaintiffs-respondents set aside the judgment and decree of the trial Court and remanded the case for fresh decision after allowing an amendment to be made in the plaint. It is the validity of the order permitting amendment that is being challenged before me. Facts as are necessary for decision of the present appeal may briefly be stated hereunder :-

(2.) Bhagwana defendant-appellant purchased land measuring 28 Kanals 19 Marlas in a Court auction held in execution of a money-decree against Mukh Ram, respondent. The plaintiffs Godha and others claimed that they were the owners in possession of the land purchased by Bhagwana. Objections were thus preferred by them before the Executing Court disputing the lability of the property in dispute to be attached to sale in execution of the decree against Mukh Ram. These objections were dismissed on the 22nd of April, 1965. A suit was then instituted by the plaintiffs-respondents to establish their right which they claimed to have in the property in dispute. Bhagwana defendant-appellant resisted the suit. He took up several pleas and on the pleadings of the parties, the trial Court framed the following issues :-

(3.) It may be mentioned that along with Bhagwana there were other persons also joined as defendants but some of them were given up and against the remaining except Bhagwana proceedings were taken ex parte. Another fact that needs to be stated here is that during the pendency of the suit, Bhagwana got possession of the suit property on 31st of October, 1965. It was held by the trial Court on issues 1 and 2 that the plaintiffs had filed to establish their title to the land in dispute but an observation was made that they were in possession as tenants under Mukh Ram, judgment debtor. A finding was also given that even if the plaintiffs were in possession of the suit land as tenants under Mukh Ram they were bound to deliver possession to Bhagwana, defendant No. 1 auction purchaser and that they had no locus standi to resist the suit, which was accordingly dismissed on 30th of the November, 1966. The plaintiffs filed an appeal and the Additional District Judge made a very strange approach. He affirmed the finding of the trial Court that the plaintiffs-respondents were not proved to be the owners of the suit land purchased by Bhagwana but instead of dismissing the appeal he remanded the case permitting the plaintiffs to amend the plaint by introducing the plea of tenancy which according to the Additional District Judge should be decided after giving an opportunity to the parties to lead their evidence for and against this plea. Hence the present appeal to Bhagwana against the remand order.