GIAN CHAND Vs. MANGI RAM

JUDGEMENT

(1.) PETITIONER claimed to be the adopted son of respondent. This contention of the petitioner has been rebutted by the respondent by filing a civil suit for declaration and perpetual injunction restraining him from interfering with the properties of respondent. The suit was decreed in favour of the respondent vide judgment and decree dated 30.12.1992. There was clear finding by the learned trial court that the petitioner is not the adopted son of the respondent. Thereafter, an appeal came to be filed and the learned Ist Appellate Court upheld the finding of the trial court stating therein that the petitioner is not the adopted son of the respondent but the judgment of the trial court was set aside on the ground that the plaintiff/respondent has not claimed the relief of possession before seeking decree for declaration. As a consequence suit filed by the plaintiff/respondent was dismissed.

(2.) BOTH the petitioner and respondent preferred appeals before this court. Appeal of the petitioner was dismissed as being concluded by concurrent findings of fact and the appeal of the respondent was allowed. Thereafter, S.L.P. came to be preferred before the Supreme Court who vide its judgment dated 26.07.2002 remanded the case back to this court. After setting aside the judgment of the appellate court decision of the Supreme Court was primarily based on the facts that before proceeding with the 2nd appeal High Court has not formulated the substantial question of law.

(3.) THEREAFTER , both the appeals were again heard by this court. Vide judgment dated 16.03.2005, learned Single Judge dismissed the appeal of the petitioner and allowed the appeal of the respondent. This court by allowing the appeal of the respondent held that plaintiff was not required to seek relief of possession for want of which suit could be dismissed as not maintainable. While dealing with the question, this court at page No.10 of the judgment dated 16.03.2005 formulated the following substantial question of law: