Dilbagh Singh and Others vs Amar Singh and Others

R.L. Anand, J.—This is a second appeal against the order dated 2nd December, 1987 passed by the Court of Additional District Judge, Jalandhar, which set aside the finding of the trial Court on issue Nos. 1 and 2 and also the impugned judgment and decree and remanded the case to the trial Court with the direction to take on record nine copies of the revenue record enumerated in the application dated 30th April, 1987 by way of additional evidence on issue Nos. 1 and 2. Further directions were given to the trial Court to give reasonable opportunity to the defendants to rebut the evidence of the plaintiff and thereafter to give fresh findings on issue Nos. 1 and 2.

Some facts of the case can be noticed in the following manner: Amar Singh son of Kishan Singh filed a suit for declaration to the effect that he was owner in possession of 1/2 share of land fully described in the head-note of the plaint and situated within the revenue estate of village Sarobad, Tehsil and District Jalandhar against the defendants and in the alternative a decree for possession to the extent of 1/2 share of the suit land. The suit was contested by Dilbagh Singh and others in the trial Court and from the pleadings of the parties, the trial Court framed the following issues:-

Whether the plaintiff is the owner of the 1/2 share of land in dispute? OPP

Whether the plaintiff is in possession of the 1/2 share of land in dispute? If not its effect? OPP

Whether the suit in the present form is not maintainable? OPD

Whether the suit is barred by the period of limitation? OPD

Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD

Whether Smt. Shanti Devi executed any valid Will dated 14th July, 1969? If so, its effect? OPD

Relief.

The suit was dismissed by the trial Court vide judgment and decree dated 10th December, 1985 and aggrieved by the judgment and decree of the trial Court, Amar Singh filed the appeal before the first Appellate Court and also filed an application under Order 41 Rule 27 CPC and sought to produce certain revenue record. The application was allowed by the first Appellate Court and the plaintiff-appellant was allowed to prove by way of additional evidence the nine copies of the revenue record which were mentioned in the application dated 30th April, 1987 itself. The first Appellate Court after allowing the application under Order 41 Rule 27 CPC also set aside the judgment and decree of the trial Court. Aggrieved by this finding as contained in the order dated 2nd December, 1987 passed by the Additional District Judge, Jalandhar, the defendants have come in this appeal, which I am disposing of with the assistance given by the learned counsel for the appellants.

The learned counsel for the appellants submits that there was hardly any justification on the part of the first Appellate Court to set aside the judgment and decree of the trial Court. If the appellate Court had allowed the application under Order 41 Rule 27 Civil Procedure Code, it would record the evidence in rebuttal of the defendants at its own level and then to dispose of the appeal on merits. The counsel further submitted that it was not necessary on the part of the first appellate Court to remand the case by setting aside the entire judgment and decree of the trial Court.

I agree with the submissions made by the learned counsel for the appellants. The additional evidence was in the shape of documentary evidence which was per se admissible. The plaintiff only wanted to place the revenue records on the file and that too in support of issue Nos. 1 and 2. In these circumstances, the learned Additional District Judge, Jalandhar, after accepting the documents in evidence could call upon the defendants to rebut the case of the plaintiff in his Court instead of remanding the case. The learned Additional District Judge had adopted a convenient method in remanding the case which was not justified. Resultantly, I allow this appeal, set aside the order dated 2nd December, 1987 and give the directions to the learned Additional District Judge to re-admit the appeal at its original number to give notice to the plaintiff either to appear in person or through counsel; to take the additional evidence on record; to give opportunity to the defendant to lead such evidence so as to rebut the documentary evidence which has been accepted by way of additional evidence at the appellate stage and to decide the appeal within three months after the closure of the evidence of the defendants.

The appellants shall appear before the Court of Additional District Judge, Jalandhar on 20th September, 1999.