RAGHUNATH SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) THIS appeal under Order 43 rule 1(u) CPC is directed against the judgment of the District Judge, Una in Civil Appeal No. 52/2002 decided on 3.11.2005 whereby he has set aside the judgment of the Sub Judge Ist Class (2) Amb, District Una in case No.34/96 decided on 21.3.2002.

(2.) THE brief facts of the case are that the appellant ( hereinafter referred to as the plaintiff) had filed a suit praying for a decree of declaration to the effect that he is joint owner of the suit land along with respondent (hereinafter referred to as the defendant) and the land is in his exclusive possession and that the entries in the revenue record showing the suit land to be mortgaged with the defendant are wrong, illegal and null and void. Consequential relief for permanent injunction restraining the defendant from interfering in the exclusive possession of the plaintiff till partition was also prayed for. The defendant contested the suit and took various objections. In the written statement a specific plea was taken that prior to consolidation proceedings, the father of the plaintiff was in need of money and had mortgaged his share in the suit land for Rs.50/-. This mortgage was an oral mortgage and was reflected in the revenue record.

(3.) THEREAFTER the defendant filed an application under Order 6 rule 7 CPC. This application was dismissed by the lower appellate court vide its order dated 18.10.2005 and one of the main grounds taken for dismissing the same was that no sense could be made out of the application. Thereafter the matter was heard and the appeal was allowed. The learned lower appellate court framed three new issues on the basis of the pleadings and set aside the judgment and decree and remanded the case back to the learned trial Court.