VINOD KUMAR Vs. SUBHASH CHAND

JUDGEMENT

(1.) The plaintiff's suit, for, rendition of, a, decree of declaration, qua, the, suit khasra numbers, and, against the defendants, was hence dismissed, by the learned trial Court, and, in, an, appeal made therefrom, before the learned First Appellate, the latter Court, after, striking, the, hereinafter extracted issues:-

(2.) The learned counsel appearing for the aggrieved defendants, contended with much vigor before this Court, qua, the order, of, wholesome remand, made by the learned First Appellate Court, vis-a-vis, the learned Trial Court, is, stained with, a, gross illegality, (i) as, it infracts the trite expostulation, of, law qua a wholesome remand, of the lis, being impermissible. However, the afore submission has no merit, as the issues initially struck, by the learned trial Judge, upon, the contentious pleadings, do not obviously, enumerate the afore issues, hence struck by the learned first Appellate Court, (ii) whereas they, were, enjoined to be imperatively struck, given the APT contested pleadings being embodied in the plaint, and, in the written statement,and, appertaining, vis-a-vis, the father of the plaintiff, remaining missing for 20 years, prior to the institution of the suit, and, when hence, the, mandate, of, Section 107, and, of Section 108 of the Evidence Act, became enlivened, (a) conspicuously also when hence, upon, either of the contesting litigants, leading cogent evidence, vis-a-vis issue No. 12 (a), struck hence, by the learned First Appellate Court, rather, thereon the fate of Civil Suit, stands hinged, (b) and, upon cogent evidence holding leanings, vis-a-vis, the contentions, reared by the defendants, rather standing adduced, before the learned First Appellate Court, (c) thereupon it may spark, an inference qua given the plaintiffs' father being alive, whereupon his alone holding, the capacity, to, make, a, challenge, upon, the Will executed, by the grand-father of the plaintiff, vis-a-vis, the defendants, and, thereupon obviously an inference also being sparked, vis-a-vis, the plaintiff holding, no, locus standi, to, institute, the suit.

(3.) Be that as it may, even issues preceding the issues, as stood initially struck, by the learned First Appellate Court, are rather closely interconnected, and, making, of, findings thereon, are, dependent, vis-a-vis, the findings, made, by the remandee Court, upon, the issues, struck by the learned First Appellate Court, (i) as, upon the father of Subhash Chand being proven to be alive, hence, uptill, his demise, he may, under the rule appertaining, to, co-parcenary property, and, if the suit property, is, proven, to, imbibe the, afore traits, his hence acquiring, the, right to be arrayed, as, a co-plaintiff, (ii) or upon the suit property being proven, to, be the self acquired property, of, the deceased testator, and, upon, the plaintiffs' father being proven to be alive, and, the will being proven, not, to be validly executed hence by the deceased testator, (iii) thereupon, the plaintiffs' father, would under the general rules, of, succession, acquire rights along with his son, the plaintiff, to, succeed to the suit property, and, whereupon also his jointly suing along with the plaintiff or his being entitled, to, solitarily hence sue, was, the trite conundrum, ensuing therefrom, and, also obviously warranting adjudication, (iv) it, devolving upon, the maintainability, of, the suit.