S.A.O No. 57 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- S.A.O No. 57 of 2009 (O&M) Date of decision:- 23.11.2010 Buta Singh & Ors. ... Appellants Versus Bakhtawar Singh ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Malkeet Singh, Advocate, for the appellants. Mr. Vipin Mahajan, Advocate, for the respondent. Gurdev Singh, J (oral) Heard. This second appeal is directed against the order dated 11.8.2009 passed by District Judge, Gurdaspur, vide which he, while deciding the appeal preferred by defendants/respondents against the judgment and decree dated 16.11.2002 passed by Civil Judge (Jr. Division), Batala, dismissing the suit of the plaintiff for declaration to the effect that he is owner to the extent of ½ share of the land in dispute measuring 31 Kanal 12 Marlas situated in village Dhandoi, Tehsil Batala with the consequential relief of permanent injunction restraining defendants No. 2 and 3 from interfering in his possession and in the alternative for joint possession of that land, remanded back the suit to the trial Court for deciding the same afresh after recording its finding on additional issue No.3 A and after hearing learned counsel for both the sides, without giving any further opportunity to produce evidence in support of their respective case. S.A.O No. 57 of 2009 (O&M) -2- The following issues were originally framed in the suit by the trial Court:- 1) Whether deceased Ujjagar Singh constituted joint Hindu Family with plaintiff and defendant No.1?OPP 2) Whether suit land is ancestral property?OPP 3) Whether the plaintiff is entitled to injunction prayed for?OPP 4) Whether the deceased Ujjagar Singh executed valid will dated 11.10.1994 in favour of defendants No. 2 and 3?OPD 5) Relief. Issue No.3A was framed as an additional issue, in view of the prayer made by the plaintiff in the alternative for joint possession of land in dispute. A perusal of the issues makes it very much clear that even if the findings on issue No.3A had not been recorded by the trial Court even then the suit could have decided, except for the alternative relief of joint possession. Finding on issue No.3A was not to effect findings on other issues. Therefore, the first Appellate Court committed an illegality while setting aside the judgment and decree of the trial Court thereby upsetting the findings recorded by it on the other issues. The first Appellate Court was required to record the finding on issue No.3A itself and then to decide the appeal or to call for the report of the trial Court on that issue. This order setting aside the judgment and decree and remanding back the suit of the trial Court for deciding the same afresh cannot be sustained. Accordingly, this appeal is hereby accepted. The order dated S.A.O No. 57 of 2009 (O&M) -3- 11.8.2009 passed by the first Appellate Court is set aside and it is directed to decide the appeal on merits after calling for the report of the trial Court on issue No.3A. The parties are directed to appear before the first Appellate Court on 4.2.2011. November 23, 2010 (Gurdev Singh) tripti Judge