AMAR SINGH Vs. SOHAN LAL

JUDGEMENT

(1.) Before adverting to the questions of law raised before me in this second appeal, it would be useful to briefly refer to the facts of the case. A suit was filed in the court of Civil Judge, Jammu for possession of 26 Kanals 10 marlas of land comprised in Khasara Nos. 268/ min and 286/min situate in Satwari. One of the plaintiffs died pending suit. He was the husband of the 2nd appellant and father of appellants 3 to 5. The plaintiffs filed the suit on the basis that they were joint tenants of the suit land with the defendant, that they were wrongfully dispossessed from the land pursuant to an order passed by Chief Judicial Magistrate, Jammu, in a proceedings under S.145 Cr. P. C. and that the same was wrong. During the pendency of the suit, the Jammu and Kashmir Agrarian Reforms Act (hereinafter referred to as the Act) came into force. The defendant filed an application on 23-1-1974 before the City Judge, Jammu, pleading that the suit was not maintainable in that court because of the provisions of the Act. The City Judge, Jammu, by his order dated 26-5-1975 rejected the application. The defendant-respondent moved this court in revision. The revision was dismissed by this court by its order dated 9-10-1979. The records were received back by the trial court on 21-11-1979. Thereafter an ex parte decree was passed against the defendant. The defendant filed an appeal before the District Judge, Jammu, raising a plea that the ex parte decree was a nullity since Beeru Ram, one of the plaintiffs, had died before the decree and that his legal representatives, were not brought on record before the decree was passed. The plaintiffs' case was that an application had been filed for bringing on record the legal representatives of Beeru Ram. The District Judge allowed the appeal and remanded the case for considering whether an application had been filed. It appears that an application for impleading the legal representatives of the deceased plaintiff was filed in the court of Civil Judge, Jammu when the records of the case had been called to this court in the Revision filed by the defendant and that the application filed by the plaintiffs was annexed with the index. It is further disclosed that the City Judge, Jammu, consigned the application to records. After remand, the City Judge, dismissed the suit holding that it stood abated. The plaintiffs took the matter in appeal. The learned 1st Additional District Judge, Jammu, confirmed the judgment and decree of the trial court; hence the second appeal.

(2.) Two questions were debated before me: (1) Since, the cause of action was joint and indivisible the whole suit did not abate and therefore the decision of the court below is wrong. (2) The parties are governed by the remand order. The only question open for consideration was the one directed to be considered in the remand order. In the absence of an appeal against the remand order, the appellants cannot re-agitate the first question even if it is to be conceded for argument's sake, that the remand order proceeded on a (illegible).

(3.) Before considering the questions of law raised it is necessary to understand that scope of the remand order around which (illegible) of the case. Before the learned District Judge, it was contended by the appellants that the ex parte decree was bad and was a nullity since it (illegible) of a dead person. The learned District Judge was told by the opposite side that an application to bring on record the legal representatives of Beeru Ram deceased was, in fact, filed, that the application was consigned to records negligently by the court and that the parties should not suffer for the fault of the Court. Shri L. K. Sharma, filed an affidavit stating that he had filed an application to bring on record the legal representatives of Beeru Ram on 19-4-1978. After considering these rival contentions on disputed facts, the learned District Judge held that there was no proper discussion by the trial court about this aspect of the case and thus set aside the decree and judgment and remanded the case observing as follows : -