Krishna Devi and Others vs Parshotam Lal and Others

R.L. Anand, J.—This is a second appeal against the order dated 23.5. 1986 passed by Additional District Judge, Ferozepur, who allowed the appeal of the plaintiff-respondent and set aside the judgment and decree of the trial court and remanded the case to the trial Court with the directions to proceed into the matter according to law and the parties were directed to appear before the trial court on a particular date.

The brief facts of the case are that Parshotam Lal plaintiff respondent filed a suit for possession by way of partition against his two brothers, namely Charnan Lal and Charanjit Lal and Smt. Kamala Wadhwa widow of Amrit Lal, who was also the real brother of plaintiff and defendants Nos. 1 and 2. The case set up by the plaintiff before the trial Court was that the property in dispute belonged to Sham Lal, who was the father of plaintiff and defendants Nos. 1 and 2 and father-in-law of defendant No. 3. The property in dispute was situated in Nimwali Gali, Ferozepur City. The plaintiff alleged that Sham Lal executed a valid Will dated 10.2.1967 bequeathing the said house to his four sons in equal shares. The plaintiff does not want to keep the property joint and hence the suit.

The suit was contested by the defendants on the plea that the suit is bad for non-joinder of necessary parties and that the property in dispute has already been partitioned.

From the pleadings of the parties, the trial Court framed the following issues:-

Whether the property in dispute is still joint between the parties? OPP.

Whether the plaintiff is entitled to the partition as prayed for? OPP.

Whether the suit is bad for non-joinder of necessary parties?

Relief.

The parties to the suit led oral and documentary evidence and on the conclusion of the trial all the issues were decided against the plaintiff. Resultantly the suit of the plaintiff was dismissed.

Aggrieved by the judgment and decree of the trial court the plaintiff filed the first appeal before the Court of Additional District Judge, Ferozepur, who for the reasons given in paras Nos. 5, 6 and 7 of the judgment allowed the appeal and set aside the judgment and decree of the trial Court and remanded the case to the trial Court with the directions to allow the plaintiff to implead the two daughters of Sham Lal as defendants and decide the case according to law. The first Appellate Court also held that the trial Court has not rightly placed the onus of issue No. 1.

Now aggrieved by the judgment dated 23.5.1986 the present appeal by the defendants.

Before 1 proceed further into the matter, I may make a mention that the plaintiff filed an application under Order 1 Rule 10 C.P.C. before the first Appellate court and that application was allowed, as a result of which directions were given to the trial Court to allow the plaintiff to add the daughters of Sham Lal as defendants and to entertain the amended plaint.

The learned counsel Mr. Chopra appearing on behalf of the appellants submits that he will not press issue No. 3 which may be decided in favour of the plaintiff. The counsel submits that it may be taken as granted that the suit of the plaintiff is not bad for nonjoinder of necessary parties. In view of the submission made by the learned counsel for the appellants, the plea of issue No. 3 stands deleted from the written statement.

The learned counsel for the appellants then submitted that the first Appellate Court should not have set aside the judgment and decree of the trial court by holding that the trial Court has wrongly placed the onus of issue No. 1 on the plaintiff. He submitted that when the parties have led evidence after knowing the case of each other, the placing of onus becomes redundant. On the contrary, Mr. Bhatia counsel for the respondents submits that a prejudice has been caused to the plaintiff by placing the onus upon his client because the defendants took the plea that the property had already been partitioned and in these circumstances it was for the defendants to lead the evidence at the first instance on issue No. 1.

After considering the rival contentions of the parties, this Court holds and decides that contesting defendants shall not take the plea of non-joinder of necessary parties and the plaintiff will not be non-suited on the plea that he had not added the daughters of Sham Lal as defendants. The first Appellate Court should not have remanded the case to the trial Court because the parties had led the evidence on issue No. 1 understanding the contentions of each other. If the plaintiff still feels that some prejudice has been caused to him by placing the onus of issue No. 1 upon him, he can make an application before the first Appellate Court under Order 41 Rule 27 C.P.C. for leading additional evidence and if such application is filed, it shall be allowed by the first Appellate court. He shall also give proper opportunity to the defendant-appellants to lead such evidence in rebuttal. After taking evidence, the first Appellate Court shall decide the appeal according to law.

Resultantly, the impugned order dated 23.5.1986 is hereby modified and directions are given to Additional District Judge, Ferozepur to re-admit the appeal to his original number and decide the same as per the observations made by this Court above.

Parties are directed to appear before the Court of Additional District Judge, Ferozepur on 11.10.1999.

Copy Dasti. One copy of this order be sent to District and Sessions Judge, Ferozepur, for compliance.