S.A.O.No.31 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-12.8.2010 Gurpreet Singh and Navdeep Singh ...Appellants Versus Sapinder Pal Kaur and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Brijeshwar Singh Bhalla, Advocate for the appellants. Mr.Vaibhav Sehgal, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) The challenge in this appeal filed by Gurpreet Singh and Navdeep Singh sons of Devinder Pal Singh appellant-plaintiffs (hereinafter to be referred as “the plaintiffs”) is to the judgment dated 11.3.2005, by virtue of which, the Ist appellate Court has set aside the judgment and decree dated 10.11.2003 and remanded the case to the trial Court for its fresh decision. 2. The conspectus of the facts, culminating in the commencement, relevant for disposal of limited core controversy, involved in the instant appeal and emanating from the record, is that the plaintiffs filed the suit for a decree of declaration and in the alternative for possession against Sapinder Pal Kaur and Charanjit Kaur daughters of Balwant Singh respondent-contesting defendants (hereinafter to be referred as “the contesting defendants”) and Devinder Pal Singh proforma respondent-defendant, to the effect that they are owners and in possession of the land in dispute, inter-alia, pleading that the land bearing Khasra/rectangle Nos.34 and 50 was the property of defendant Nos.1 and 2 in equal shares. Defendant No.2 Charanjit Kaur had sold the land measuring 21 Kanals 9 Marlas and 21 Kanals 10 Marlas to Inderjit Kaur, mother of the plaintiffs, vide registered sale deeds dated 30.5.1991 and 4.6.1991 respectively. Since then, S.A.O.No.31 of 2005 2 the vendee had been in possession of the suit land. Inderjit Kaur had died and the plaintiffs have succeeded her, but the defendants are denying their ownership over the suit land. 3. Concisely, according to the plaintiffs, they are entitled to get their shares out of the land in dispute. On the basis of the aforesaid allegations, the plaintiffs filed the suit for decree of declaration and in the alternative for possession of the suit land against the defendants in the manner indicated here-in- above. 4. The contesting defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit; locus standi of the plaintiffs; limitation and misjoinder of necessary parties. The defendants claimed that Charanjit Kaur had never sold any property to Inderjit Kaur. They had already sold land measuring 21 kanals 10 marlas to Karamjit Singh, Charanjit Singh and Gurbachan Singh etc. and possession was delivered to them. They are in possession of the properties as owners and have raised boundary wall around it. The contesting defendants claimed the collusion between the plaintiffs and defendant No.3 in this relevant connection. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. However, defendant No.3 filed the separate written statement almost admitting the claim of the plaintiffs. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the plaintiffs are entitled for declaration as prayed for?OPP 2. Whether the plaintiffs are entitled for possession in the alternative as prayed for?OPP S.A.O.No.31 of 2005 3 3. Whether the suit is not maintainable?OPD 4. Whether the suit is bad for misjoinder of parties?OPD 5. Whether suit is result of collusion between plaintiff and defendant No.3. If so, its effect?OPD 6. Relief. 6. The parties to the litigation, brought on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 7. Taking into consideration the evidence on record, the trial Court partly decreed the suit of the plaintiffs, by virtue of judgment and decree dated 10.11.2003, the operative part of which is as under:- “In view of my findings on the above said issues, suit of the plaintiffs partly succeed and is partly decreed with costs in favour of the plaintiffs. The plaintiffs are declared to be the owners of land measuring 35 Kanals 7½ Marlas out of the total land measuring 70 Kanals 15 Marlas fully described in para No.1 of the plaint on the basis of sale deeds Ex.P1 and Ex.P2. Decree sheet be prepared.” 8. Aggrieved by the judgment and decree of the trial Court, the contesting defendants filed the appeal, while the plaintiffs have also filed the cross objections/appeal. The Ist appellate Court accepted the appeal, set aside the judgment and decree and remanded the matter to the trial Court for its fresh decision, vide impugned judgment and decree dated 11.3.2005. 9. The appellant-plaintiffs did not feel satisfied with the impugned judgment and the decree of the Ist Appellate Courts and filed the present appeal. That is how, I am seized of the matter. 10. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 11. As is evident from the record that during the pendency of the appeal, an application under Order 1 Rule 10 CPC was filed to implead Harjit Kaur wife of Gurbachan Singh and Charanjit Singh son of Kirpal Singh as defendant Nos.4 S.A.O.No.31 of 2005 4 and 5 in the main suit on the ground that they have purchased land measuring 32 kanals out of the suit land, vide two sale deeds dated 16.7.1998 and are bonafide purchasers for valuable consideration. 12. Taking into consideration the factum of sale deeds Ex.D1 and Ex.D2, which were executed on 16.7.1998 on the same day when the suit was filed and provisions of Orders 22 and 1 Rule 10 CPC, the Ist Appellate Court accepted the application and allowed Harjit Kaur and Charanjit Singh to be impleaded as defendants in the suit. Sequelly, the Ist Appellate Court has also decided the other applications, one under Order 14 Rule 5 and second under Order 6 Rule 17 CPC, filed by the above named persons and ultimately passed the impugned judgment, the operative part of which is reproduced as under:- “Therefore, judgment and decree dated 10.11.2003 challenged in present appeal are also set aside. Accordingly, case is remanded back with the following directions:- 1. Trial court should implead Charanjit Singh and Harjit Kaur as additional defendants by treating that such application has been allowed by this court. 2. Plaintiffs will file amended plaint as envisaged under Order 1 Rule 10 (4) CPC by arraying Charanjit Singh and Harjit Kaur as additional defendants being necessary parties. 3. After filing amended plaint by plaintiffs trial court will allow opportunities to defendants to file written statements. 4. Trial Court may also allow to plaintiffs to file replication (s) in accordance with law. 5. Trial court may cast issue about limitation irrespective of pleadings in view of section 3 of Indian Limitation Act and will decide such issue in accordance with law. 6. Trial court may also cast further issues if any arise from pleadings of parties and material available on record as contemplated under Order 14 CPC. 7. Trial court will allow the parties to lead evidence in accordance with law and statements of witnesses will be recorded as contemplated under Section 138 of Indian Evidence Act without substituting examinations-in-chief of S.A.O.No.31 of 2005 5 any witness by any affidavit. 8. After conclusion of evidence of parties, trial court will decide all the issues as contemplated under Order 20 Rule 5 CPC in accordance with law and it will redecide the suit on merits in accordance with law. 9. Parties are directed to put appearance before trial court on 29.3.2005. Application of Harjit Kaur and Charanjit Singh under Order 1 Rule 10 CPC, application of appellants under Order 14 Rule 5 CPC and other application of appellants under Order 6 Rule 17 CPC stood disposed of as indicated above. Cross-objections of plaintiff-respondents no.1 and 2 are also disposed of accordingly. Appeal of defendant-appellants is accordingly allowed leaving both the parties to bear their own costs.” Therefore, the Ist appellate Court remanded the matter to the trial Court. 13. Such thus being the position on record, now the core question that arises for consideration is as to whether the remand order is illegal as urged on behalf of the appellants or otherwise legal as submitted by opposite side. 14. Having regard to the rival contentions of the learned counsel for the parties and after bestowal of thoughts over the entire matter, to me, the impugned order is in consonance with the relevant legal provisions in this context. 15. Ex facie, the main argument of the learned counsel for appellant- plaintiffs that the first appellate Court wrongly remanded the case to the trial Court, is not only devoid of merit but misplaced as well. 16. The provisions of Order 41 Rule 25 CPC regulate such order of remand, which postulate that “where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the S.A.O.No.31 of 2005 6 Appellate Court together with its findings thereon and the reasons therefor.” 17. As indicated earlier, the first appellate Court directed Harjit Kaur and Charanjit Singh to be impleaded as additional defendants. The plaintiffs were directed to file the amended plaint by arraying them as defendant Nos.4 and 5, allowed them an opportunity to file their written statement and replication. The first appellate Court further directed the trial Court to frame additional issues and to recast the issues already framed arising out of the pleadings of the parties and then to allow the parties to lead evidence in accordance with law. Keeping in view the totality of the facts and circumstances of the case that Harjit Kaur and Charanjit Singh purchased some land out of the suit land, vide registered sale deed dated 16.7.1998 and present suit was also filed on the same day and allegations of collusion and fraud, to me, their presence was essential to decide the real controversy between the parties. Thus, the first appellate Court has rightly remanded the matter to the trial Court for its fresh decision after framing/recasting the issues arising out of the subsequent pleadings of the parties. In this manner, there is a substantial compliance and order of remand is deeply in consonance with the legal provisions as contemplated under Order 41 Rule 25 CPC. Therefore, the contrary arguments of the learned counsel for the appellant-plaintiffs “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 18. Neither any other legal infirmity has been pointed out nor any legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 19. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the trial of the suit, as there is no merit, therefore, the instant appeal is hereby dismissed in the obtaining circumstances of the case. 20. Needless to say, the trial Court will not be influenced by the S.A.O.No.31 of 2005 7 observations of the Ist Appellate Court with regard to the manner of acceptance of evidence and would accept the admissible evidence as per the amended provisions of Civil Procedure Code and Indian Evidence Act while deciding the suit afresh in accordance with law. (Mehinder Singh Sullar) 12.8.2010 Judge AS