Fauja Singh and others vs Jaswant Singh

S.P. Goyal, J.—One Boor Singh son of Wadhawa Singh was owner of land measuring 1 Kanal comprised of Khasra No. 632. Ha died issueless. After his death, a dispute arose between the petitioners and Smt. Gopal Kaur respecting his inheritance. The plaintiffs claimed themselves to be the owners of the suit property on the basis of a will executed by Boor Singh whereas Smt. Gopal Kaur claimed the estates as the widow of the deceased. The trial Court accepted the claim of the widow but on appeal its judgment was reversed and the petitioners were declared owners of the suit property. Thereafter, they filed the present suit for possession of the suit property on the basis of ownership. The defendant contested the suit denied the execution of the alleged will by Boor Singh and claimed himself to be the owner of the suit property being a vendee from Smt. Gopal Kaur. On the pleadings of the parties, the following issues were framed:--

Whether the plaintiffs are owners of the land in suit ?

Whether the suit is barred under Order 2, rule 2, CPC ?

Whether the suit is barred by res-judicata ?

Whether the plaintiffs are estopped from challenging the sale by Gopal Kaur in favour of defendant ?

Relief.

After recording the evidence, the trial Court answered issue No. 1 in favour of the plaintiffs and issues Nos. 2, 3 and 4 against the defendant. As a result of those findings that suit was decreed. Aggrieved by that judgment, the defendant went in appeal. Before the learned Additional District Judge it was argued that though the defendant had challenged the execution and validity of the alleged will by Boor Singh yet no issue was framed by the trial Court covering this matter. This plea prevailed with the learned Additional District Judge and without going into the merits of the findings of the trial Court on the said issues, he framed an additional issue respecting the execution and validity of the will, set aside the judgment and decree of the trial Court and remanded the case for fresh trial and redecision Vide judgment dated April 20, 1976. After remand, in the trial Court, the petitioners raised an objection that the parties could lead evidence only on the additional issue framed by the learned Additional District Judge, but this objection was over ruled by the trial Court by the impugned order dated November 9, 1976 and it was held that the parties were entitled to lead evidence afresh on all the issues as the case had been remanded for fresh trial and redecision. It is this order which has been challenged by the petitioners by way of this petition u/s 115 of the CPC (hereinafter referred to as the Code).

According to the learned counsel for the petitioners, the remand order dated April 20, 1976 has to be understood in the light of the findings recorded in the judgment and as findings of the trial Court on none of the issues was either confirmed or set aside, the case is deemed to have been remanded only for trial of the additional issue and redecision thereafter. Reliance for this contention has been placed on a decision of the Supreme Court in Mohan Lal Vs. Anandibai and Others, . In that case the High Court had reversed the findings on certain issues and after setting aside the judgments and decrees of the Courts below, remanded the case to the trial Court for fresh decision on merits with advertence to remarks in its judgment. Consequently, it was argued by the learned counsel that making this order, the High Court had set aside all findings recorded on all the issues by the trial Court and the first appellate Court, while rejecting this contention of the learned counsel, the Court observed :

This is not a correct interpretation of the order, obviously, in directing that findings of the both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower Courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order.

In the present case, as already observed above, the learned Additional District Judge neither adverted to the findings of the trial Court on the issues framed nor reversed or confirmed them. The findings on these issues in view of the said judgment of the Supreme Court, can not be said to have been set aside and consequently the case would be deemed to have been remanded for fresh trial of the additional issue and redecision of the case.

Faced with this situation, the learned counsel for the respondent urged that by the impugned order, the trial Court interpreted the remand order and allowed the parties to lead evidence on all the issues. It cannot be disputed that the trial Court had the jurisdiction to pass the impugned order and illegality or irregularity in the exercise of its jurisdiction having been pointed out, the said order would have not be open to challenge by way of petition u/s 115 of the Code. The argument is wholly misconceived. As found above, the case has been remanded for fresh trial on the additional issue only and the trial Court had no jurisdiction to reopen the issues already decided and allow the parries to lead evidence thereon. The impugned order is, therefore, clearly without jurisdiction.

In view of the above discussion, this petition is allowed, the impugned order is set aside and the trial Court is directed to take further proceedings in the suit in accordance with the observation made above. No Costs.