Gangi vs Gian Kaur and others

With the consent of the learned counsel for the parties, the appeal has been taken up for final adjudication.

The plaintiff has come up in appeal gainst the order dated August 7, 1989 of the first appellate Court, which, on appeal, set aside the judgment and decree dated December 15, 1986 of the trial Court and remanded the case to the latter to redecide the same after permitting the parties to lead evidence on the issue framed by the first appellate Court and also on the other issues already framed.

The facts:

The plaintiff filed a suit for declaration to the effect that she was the owner of the suit land and for permanent injunction restraining the defendants from taking forcible possession from her. The suit land was owned by her father Shri Santa Singh, who expired on December I, 1982. He had no other issue except the plaintiff.

Defendant No. 1 resisted the suit on the ground that the deceased executed wills dated April 21, 1969 and November 18, 1982, vide which he bequeathed the estate in favour of the plaintiff and defendant No. 1. She was given one-half share in the estate by. the deceased in lieu of the services rendered.

The trial Judge framed the following issues: --

(1) Whether Santa Singh deceased executed two valid wills on 21-4-1969 and another on 18-11-1982 in favour of plaintiff Gangland defendant No. 1 Gian Kaur? OPD No. 1

(2) Whether the suit is not maintainable in the present form? OPD

(3) Whether the suit is bad for misjoinder of parties? OPD

(3-A) Whether the plaintiff is in possession of the suit land and is entitled to the declaration and injunction prayed for? OPP

(4) Relief.

Under issue No. 1, the trial Court held that the deceased did not execute the wills dated April 21,1969 and November 18, 1982 in favour of the plaintiff and defendant No. 1 and that both of them had not served the deceased. Under issues Nos. 2 and 3-A, the trial Court found that the suit for declaration and permanent injunction was maintainable since the plaintiff was in possession of the suit land. Defendants Nos. 2 to 4 were co-sharers and they were rightly impleaded as defendants to the suit and the suit was not bad for misjoinder of parties. The suit was decreed and the defendants were restrained from taking possession of the suit land forcibly.''

Defendant No. 1 Gian Kaur assailed the judgment and decree of the trial Court in first appeal. The first appellate Court found that vide document Ex.DW8/A the parties had compromised and the trial Court did not frame proper issue with regard to compromise Ex.DW8/A and did not record any finding on this point. He framed an additional issue, which reads thus :-

"(3-B) Whether the parties compromised on 13-10-1984 and executed a document, regarding that and that document relates to the suit land? OPD"

and set aside the judgment and decree of the trial Court and remanded the case for re-decision after permitting the parties to lead evidence on the additional issue framed by him and on the issues already framed.

The order of the first appellate Court is not only unwarranted, at law but contrary to the facts on record. He was in error in observing that the trial Judge did not record any finding with regard to the validity of the alleged compromise, Ex. DW8/A. The trial Court dealt with the compromise in para 11 of the judgment and held thus:--

"Ex.DWS/A showing that a compromise was entered into between Jagat Singh and Avtar Singh but a perusal of the same does not show that the same was regarding the suit land or some other land. Moreover, this compromise was made during the pendency of the suit and it has not been signed by Gangi plaintiff and Jagat Singh who is alleged to have signed the same has not admitted this document as having been executed by him, the same has hardly any sanctity in the eye of law."

In the light of this finding, it is difficult to sustain the conclusions arrived at by the first appellate Court that the trial Court did hot advert to the validity or otherwise of the alleged compromise, Exhibit DW 8/A. If the first appellate Court had taken little pains to examine the trial Court''s judgment, it would not have hastened to arrive at the conclusion that the trial Court did not arrive at a decision with regard to the validity of the alleged compromise, Ex. DW8/A.

The Appellate Court cannot make order of remand without coming to a conclusion that the decision of the trial Court is wrong and that it is necessary to reverse or set aside the judgment and decree. It has to consider the evidence on record and then arrive at a conclusion whether the finding recorded by the trial Court cannot be supported on evidence on record. The Appellate Court ought not to have reversed the judgment of the trial Court merely for the purpose of remanding the case. The course adopted by it has to be deprecated. This Court has said time and again that remand should be ordered when the case falls within the four corners of O.41, R.23 or 23-A, Civil P.C. and final judgment cannot be rendered by resorting to the provisions of O.41, Rr. 24 and 25, Civil P.C. It was unnecessary to frame the additional issue with regard to the validity of the compromise. Exhibit DW8/A. The parties were fully alive to the issue regarding the validity of the alleged compromise. They led evidence on this point and the trial Court, after recording evidence, came to the conclusion that the compromise had no sanctity in the eye of law. This finding of the trial Court was open to challenge before the Appellate Court and the Appellate Court could have reversed the same if it.was so justified on facts.

For the reasons aforementioned, the appeal is allowed and the order dated August 7,1989 of the first appellate Court remanding the case to the trial Court for redecision is set aside. The District Judge, Kapurthala is directed to withdraw the appeal from the Court of the Additional District Judge and dispose of the same himself. The parties through their counsel are directed to appear before District Judge, Kapurthala on January 12, 1990. There will be no order as to costs.

Appeal allowed.