SOHAN LAL Vs. MULTAN CHAND

JUDGEMENT

(1.) THIS is a civil miscellaneous appeal by Sohan Lal under Order 43 Rule 1(u), CPC against the order of the Civil Judge, Bikaner, dated 29th April, 1977, where by Multan Chand respondent was impleaded legal representative of Mst. Magli deceased plaintiff and the suit was remanded to the court of the Munsiff Bikaner, for trial after reversing the judgment and decree of the learned Munsiff dated 13th April, 1976.

(2.) THE relevant facts out of which this miscellaneous appeal are briefly stated as follows : Mst. Magli deceased instituted a suit against Sohan Lal appellant in the court of the Munsiff. Bikaner, for a declaration that the gift -deed executed by her and got registered on 21st May, 1973 in favour of the appellant being ab initio null and void may be revoked It was alleged in the plaint that Mst. Magli was not keeping good health after the death of her husband. Sohan Lal appellant was sympathetic towards her and zradually succeeded in exerting undue Influence on her mind. Under his influence she gifted away her property to him without any consideration and in lieu of his promise to take her and her husband's ashes to Haridwar for performance of certain religious rites or ceremonies. It was further averred in the plaint that Mst. Magli was kept in dark that the deed which she was going to execute in favour of Sohan Lal was a gift -deed. According to her, Sohan Lal made her believe that the deed was an adoption deed.

(3.) I have perused the orders of the courts below and heard Mr. Guru Prakash, learned Counsel for the appellant, and Mr. H.D. Khatri and Mr. Parmatma Sharan, Advocates appearing on behalf of the respondent. Firstly, it was contended by Mr. Guru Parkrsh appearing on behalf of the appellant that the order of the learned Munsiff declaring the suit to have abated did not amount to a decree under Section 2, CPC, nor was it an order appealable under Order 43 Rule 1 CPC and as no appeal could be preferred to the lower appellate court. Mr. H.D. Khatri, learned Counsel for the respondent, on the ether hand, urged that the decision of the leaned Mursiff that the right to sue did not survive after the death of sole plaintiff Mst. Magli was an adjudication, which conclusively determined the respondent's right in regard to the matter in controversy in the suit and it was, therefore, a decree and was appealable.