Sh. Krishan Kumar Agarwal vs Sardar Hardayal Singh

Sudhanshu Dhulia, J.—Heard Mr. Anuj Garg, Advocate for the petitioner and Mr. Arvind Vashisth, Advocate for the respondent.

There is a history of protracted litigation between the plaintiff and the defendant, running for the last thirty years, as the Original Suit was filed way back in the year 1981, by the plaintiff/petitioner.

This Writ Petition has been filed against the order dated 27.8.2009 passed by the Additional District Judge/F.T.C.-5, Dehradun in Civil Appeal No. 249 of 2001 Krishan Kumar Agarwal v. Hardayal Singh exercising its jurisdiction under Order XLI Rule 25 of the Code of Civil Procedure. New facts were brought to the notice of the Appellate Court during the pendency of the Appeal. The Appellate Court thus framed a new issue and remanded the matter back to the trial Court for its adjudication.

Earlier the suit of the plaintiff/ petitioner for permanent injunction, being Original Suit No. 67 of 1981 was dismissed by the Trial Court vide order dated 7.12.20001 on the ground that the plaintiff had no title over the property. The plaintiff thereafter had filed Civil Appeal before the Appellate Court bearing Civil Appeal No. 249 of 2001. It was during the pendency of the Civil Appeal that the name of the plaintiff/petitioner was recorded as a Bhumidhar in the revenue records and on the basis of this new fact, the contention of the plaintiff/petitioner is that the issue Nos. 1 and 6, which went against the petitioner were liable to be adjudicated afresh. Logically, the Counsel for the plaintiff/petitioner contends that what was liable to be remanded were issue Nos. 1 and 6 to the trial Court for fresh adjudication. Issue Nos. 1 and 6 as framed by the trial Court and adjudicated upon consequently are quoted as under:

Whether the plaintiff is owner and in possession of the property in dispute? If yes, its effect?

* * * *

Whether the sale-deed mentioned in the plaint is null and void on the basis of the averments made in Paragraph No. 9 of the Written Statement? If yes, its effect?

The issue, which has actually been framed by the Appellate Court and remanded to the Trial Court for fresh adjudication under Order XLI Rule 25 of the Code of Civil Procedure, reads as under:

Whether on the disputed property, the right, title as well as possession of plaintiff has been determined by a competent authority? If so, what are its effects?

In the considered opinion of this Court, the issue which has been framed by the Appellate Court and remanded under Order XLI Rule 25 of the CPC takes care of all the aspects of the matter. The issue has been rightly framed and therefore, no interference is called for from this Court in exercise of its extra-ordinary jurisdiction. The Writ Petition, therefore, has no merit and is liable to be dismissed and is hereby dismissed. No order as to costs.