Gulzar Singh & Ors. v. Santosh Rani & Ors.

HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.O.P.Kamboj, Advocate, for the appellant Mr.Rajesh Narang, Advocate, for respondents No. 1 to 4 Mr. A.K.Khunger, Advocate, for respondent No. 5 *** GURDEV SINGH, J. Joginder Singh (who has since died and whose legal representatives, Santosh Rani and others were brought on the record) filed suit for possession of the land in dispute measuring 53 kanals 01 marla, situated in village, Jand Wala Bhime Shah, Tehsil Fazilka, fully detailed in the plaint and for recovery of ` 83612.42 paise, as compensation, for the use and occupation of that land by Gulzar Singh, appellant No. 1-defendant No. 2. The suit was dismissed by Civil Judge(Junior Division) Fazilka, S.A.O. No.42 of 2009 -2- vide judgment and decree dated 24.3.2006. Santosh Rani and others filed first appeal against that judgment and decree which was accepted by Additional District Judge, Ferozepur, vide order dated 18.5.2009 and after framing of additional Issue No. 3-A, the judgment and decree of the trial court was set aside and the suit was remanded back to the trial court for deciding the same afresh. The defendants have preferred this second appeal against that order. It has been averred in the plaint that Joginder Singh, Gulzar Singh and Ashok Kumar, are real brothers, whereas Samar Kumar, defendant No. 3 is the son of said Gulzar Singh. They orally partitioned their joint properties and on the basis thereof, obtained a decree dated

21.2.1990 from Civil Judge, Saharanpur. In that decree property of one Amar Singh was also included, though he was not impleaded as a party. Therefore, they entered into a fresh family settlement, excluding the land of Amar Singh in that family settlement. The land in dispute had fallen to his share. The family settlement was reduced into writing on 5.2.1991. However, the defendants in league with each other and in furtherance of their common intention, entered upon the suit land. Defendant No. 1 cultivated 53 kanals and 01 marlas of land whereas defendant No. 2 cultivated 32 kanals of land and defendant No. 3 cultivated 8 kanals 17 marlas of land, as detailed in the plaint. They usurped the income from that land with effect from Kharif 1992 to Rabi 1995. Therefore, they are liable to pay the compensation for the use and occupation of that land and defendant No. 1 is liable to pay the amount, mentioned in the plaint. The suit was contested by the defendants. Defendants No. 2 and 3 filed joint written statement. They admitted in the same that they and S.A.O. No.42 of 2009 -3- the plaintiff had joint land in village Jand Wala Bhime Shah. They also admitted that they had joint land in village Devla, Tehsil and District Saharanpur. They pleaded that the plaintiff and defendants No. 1 and 3 mutually entered into an agreement, vide which the land was exchanged amongst themselves, regarding which, writing was effected, which was signed by all of them. Admitting and relying upon that exchange, the plaintiff himself filed suit No. 423 of 1993 titled as Joginder Singh vs. Gulzar Singh, in the Court of City Munsif at Saharanpur, which was decided on 25.2.1994. After the exchange of the land, the plaintiff was not left with any interest in the land in dispute and as such, he has no cause of action nor any locus standi to file the suit and is estopped from filing the same by his own act and conduct. While entering into such a transaction, the plaintiff had agreed to return the sum of ` 2,00,000/-, taken by him by means of bank draft of ` 1,00,000/- and `. 1,00,000/- in cash, by 30.5.1992. He failed to return that amount, as a result of which the earlier writing/transaction became ineffective. The same has already lost its value and force. Defendant No. 1 in his written statement reiterated the averments made by defendants No. 2 and 3. On the pleadings of the parties, following issues was framed by the learned trial court:-

1. Whether the plaintiff is entitled for possession of land measuring 53 kanals situation in village Jand Wala Bhime Shah?OPP

2. Whether the plaintiff is entitled to recover Rs. 83612.42 paise of mesne profits?OPP

3. Whether suit of the plaintiff is not maintainable in its present S.A.O. No.42 of 2009 -4- form?OPD

4. Whether the plaintiff has been estopped by his own act and conduct from filing the present suit?OPD

5. Relief The parties produced their evidence in respect of their respective pleas. After going through that evidence and hearing learned counsel on their behalf, the learned trial court decided all the Issues against the plaintiff and resultantly dismissed his suit. In the appeal, Additional District Judge framed the following issue as additional issue:- 3-A. Whether the parties exchanged their land and the suit land situated at village Jand Wala Bhime Shah, Tehsil Fazilka came to the share of the defendants and the land situated at village Devla Tehsil and District Saharanpur came in the share of the plaintiff?OPD In stead of calling for report on that issue from the trial court, the findings recorded by the trial court on other issues were set aside and after setting aside judgment and decree, suit was remanded back to the trial court for deciding the same afresh. This approach of the First Appellate Court is totally erroneous. At the time of arguments, it was not disputed by the counsel for the parties that Issue No. 3-A, which was framed as additional issue, does arise from the pleadings of the parties. It is pertinent to note that a finding regarding that issue was recorded by the trial court while deciding Issue No. 1. It is very much clear from the perusal of the judgment of the trial court that the defendants produced evidence regarding the exchange of land, which was S.A.O. No.42 of 2009 -5- duly considered while returning a finding in their favour. Order 41 Rule 24 CPC reads as under:- “Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” Thus, if the first Appellate Court was of the view that the finding was to be recorded on any such additional issue, it should have resettled the issues and finally determined the suit as it was in a position to pronounce the judgment in view of the sufficient evidence on the record. Such a finding recorded by the First Appellate Court cannot be sustained. Accordingly, this appeal is hereby accepted. Order dated

18.5.2009 passed by Additional District Judge, Ferozepur, is set aside and the appeal is remanded back to that court for deciding the same afresh in the light of the observations made above. The parties are directed to appear before it on 3.2.2011.0 (GURDEV SINGH) JUDGE December 07, 2010 PARAMJIT