NAND LAL Vs. PREMI DEVI

JUDGEMENT

(1.) Sarwan Ram father of appellant Nand Lal had filed a suit for permanent prohibitory injunction against respondent his daughter-in-law. The suit was dismissed by learned Senior Sub Judge Bilaspur camp at Ghumarwin on 15.9.1989 on the ground that Sarwan Ram though was held to be the owner of the suit land but he was not found in possession thereof. Sarwan Ram had filed appeal against judgment, decree dated 15.9.1989. In the appeal Sarwan Ram had filed an application under Order 6 Rule 17 read with Section 151CPC for amendment of the plaint seeking relief of possession on the basis of title, which was allowed by learned lower Appellant Court on 26.9.1992. The learned lower Appellate Court vide impugned judgment and decree has dismissed the appeal, which has been assailed in second appeal and has been admitted on following substantial questions of law:

(2.) I have heard Mr. Rakesh Jaswal, Advocate learned counsel for the appellant and Mr. Subhash Sharma, Advocate learned counsel for respondent. I have also gone through the record.

(3.) It has been submitted by Mr. Rakesh Jaswal learned counsel for appellant that learned lower Appellate Court has erred in dismissing the application under Order 6 Rule 17 CPC vide impugned judgment inasmuch as the said application was already allowed by the learned lower appellate Court on 26.9.1992. He has submitted that the learned trial Court had found Sarwan Ram to be the owner of the suit land. The suit was dismissed only on the ground that the suit land was not found in possession of Sarwan Ram and it was found in possession of Premi Devi. Once the application for amendment of plaint was allowed for possession of the land on the basis of title, the learned District Judge should have decreed the suit on the basis of title, more particularly when the judgment dated 15.9.1989 passed by the trial Court was accepted by the respondent. She has not filed any appeal against the judgment, decree dated 15.9.1989 nor she has filed cross objections in the lower appellate Court. The learned counsel for the respondent has supported the impugned judgment.