RAM BACHAN SINGH Vs. DOMA SINGH

JUDGEMENT

(1.) THIS application in revision by the sole petitioner who was defendant No. 1 in the trial court, is directed against the judgment and decree of the appellate court in Title Appeal No. 136/69 of 1962/64 setting aside those of the trial court passed in Title Suit No. 19 of 1961 and remanding the suit to the trial court for fresh decision in accordance with law and in the light of the observations made by the appellate court in its judgment.

(2.) IN order to appreciate whether It was a fit case for remand or not, it will be necessary to set out facts in brief. Opposite party Nos. 1 to 3 instituted the said title suit in the court of Munsif, Arrah, for declaration of title and recovery of possession over half share in 4.66 acres of land fully described at the foot of the plaint irnpleading Ram Bachan Singh, the petitioner, as defendant No. 1 and petitioner's wife Shyam Sundar Kuer (since dead) as defendant No. 2, Kesho Singh, minor son of petitioner as defendant No. 3 who is opposite party No. 4 placed under Deputy Registrar Guardian Advocate. Sakaldip Singh, opposite party No. 8 as defendant No. 5, Jagdish Singh opposite party No. 9 as defendant No. 6 and one Rajlila Singh as defendant No. 4 who died during the pendency of the suit. IN the suit the plaintiffs inter alia sought reliefs that it be adjudicated and declared that the disputed kasht land belonged to them and they had full title to the disputed land whereas defendants 1 to 4 had no concern with the suit land and those defendants neither had any title nor possession over it. They further prayed that on adjudication the possession of the disputed land be decreed in their favour. Defendant No. 4's legal heirs, namely, Lakhan Singh, opposite party No. 5 was substituted as defendant No. 4(a), Lakhandeo Singh, opposite party No. 6 was substituted as defendant No. 4(b) and Sarba Singh opposite party No. 7 was substituted as defendant No. 4(c). It may be noted that defendant Nos. 1 to 4 were impleaded as defendants first party whereas defendants 5 and 6 were impleaded as defendants second party. IN the plaint the plaintiffs gave genealogical table showing that they were sister's sons of Rajlila Singh and they claimed as such in the plaint. The defendants in their written statement denied the genealogy and they set out a separate genealogical table showing that the plaintiffs are phuphera cousins of Rajlila Singh, the deceased. On the pleadings of the parties, various issues were framed by the trial court of which two are important and relevant for consideration of this application. They are: 1. Have the plaintiffs got their alleged subsisting title to the suit land? 2. Are the plaintiffs entitled to a decree for recovery of possession? The contesting parties to the suit adduced evidence in support of their respective cases. The trial court on those two issues decided against the plaintiffs holding that they failed to establish their title over the suit land and, therefore, they were not entitled to any decree for recovery of possession over the same. It further held that it was not necessary in the suit to decide as to whether the plaintiffs were sister's sons or phuphera cousins of Rajlila Singh, as the matter might have to be gone into in some other suit for the properties left behind by Rajlila Singh. It also held that similarly it was not necessary to decide anything with respect to the will (Ext. C) alleged to have been executed by Rajlila Singh in favour of defendant No. 3.

(3.) MR. Rash Bihari Singh, learned counsel appearing on behalf of the petitioner, assailed the impugned order and contended that the learned Subordinate Judge erred in passing the said remand order. He submitted that whether the plaintiffs are sister's sons of Rajlila Singh or phuphera cousins was beyond the scope of the suit, and those matters were not specifically raised in the pleading. In the absence of such assertions, no specific issues could have been framed by the trial court in the said suit. Therefore, remand by the appellate court for giving a finding on the basis of the question whether the plaintiffs were sister's sons of deceased Railila Singh, is not valid and not in accordance with law. In support of his contention he relied on a decision in Kanda v. Waghu, AIR 1950 PC 68. He drew my attention to paragraph 11 of the said judgment at page 69 which is to this effect:-- "Their Lordships agree with the learned Judges of the High Court that the District Court erred in framing the new issue and in sending the case back to the trial Court for further hearing. As already indicated the question embodied in the additional issue was not raised In the pleadings. The appellants founded their claim on the ground that the land was ancestral and it was on that ground that they challenged the right of the widow to make the gift. Not once during the proceedings in the trial Court did they suggest that even if the land was found to be non-ancestral, the widow would still be incompetent to dispose of It. In Eshenchunder Singh v. Shamachurn Bhutto, (1866) 11 Moo Ind App 7 at p. 20 = (6 WR 57) (PC) Lord West-bury described it as an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. The course decided upon by the learned District Judge offended against this principle and their Lordships consider that he was rightly overruled." He urged that in the instant case also the plaintiffs have not claimed title over the disputed land on the ground of inheritance from defendant No. 4 who died subsequent to the filing of their plaint. Thereafter the plaintiffs did not amend the body of the plaint to indicate that they were claiming title also on the ground of inheritance from defendant No. 4 who died subsequent to the filing of the suit. He argued that the plaintiffs simply filed the substitution application dated 5-5-61 in order to substitute the heirs of the deceased. In that also they did not claim any right on the ground of inheritance from deceased defendant No. 4. By reference to serial No. 8 of order sheet dated 6-5-61 in the said title suit, he contended that the plaintiffs were allowed to amend their plaint with regard to their substitution petition alone, i.e., to the extent of the names of the parties bringing out the heirs of deceased Rajlila Singh, defendant No. 4. He submitted that no doubt both parties in their pleadings had given two different genealogical tables; plaintiffs in order to show that they were sister's sons of deceased Rajlila Singh, whereas defendants to show that the plaintiffs were merely phuphera counsins of Rajlila Singh. According to him those were not enough materials from the trial court to have framed issues on that point. They were also not enough for the parties to have led any evidence on that point as well. In that view of the matter learned counsel submitted that the said remand order could not have been passed by the appellate court and the same is vitiated.