Regular Second Appeal No. 1942 of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 1942 of 2010 Date of Decision:October 04, 2010 Sukhwant Singh and others ---Appellants versus Nirmal Kaur and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.OPS Tanwar, Advocate, for the appellants Mr. Pritam Saini, Advocate, for the respondents No. 1 to 5 *** GURDEV SINGH, J. This second appeal has been filed by the appellants-defendants against the judgment and decree of the First Appellate Court dated 30.4.2010 passed by Dr. Neelima Shangla, Additional District Judge, Kurukshetra, vide which she accepted the appeal preferred by the respondents-plaintiffs against the judgment and decree dated 12.8.2008 passed by Civil Judge(Senior Division), Kurukshetra, and decreed their suit to the effect that the judgment and decree dated 17.1.1992, passed in Civil Suit No. 1493/1991, titled Balwant Singh vs. Surjit Kaur” by the Court of Senior Sub Judge, Kurukshetra and mutation No. 1080 sanctioned on 30.5.1992 on the basis thereof, are null and void, illegal; being based on fraud and misrepresentation of facts and further declaring them to be the full Regular Second Appeal No. 1942 of 2010 -2- owner in possession of 5/6th share of the land measuring 10 kanals 4 marlas, detailed in para No. 1 of the plaint and that the defendants have no right, title or interest therein with consequential relief of permanent injunction restraining the defendants from dispossessing them from that land and from alienating the same in any manner. The claim of the plaintiffs, as made in the plaint, is that they have 5/6th share in the land in dispute and that the judgment and decree dated 17.1.1992 and the mutation sanctioned on the basis thereof, are illegal, inoperative, ineffective being based on fraud and misrepresentation of facts, as there was no such family settlement in the year 1991, as alleged in the plaint of that suit and that their thumb impressions/signatures were obtained for getting the land partitioned and not for obtaining the decree from the court. The claim of the plaintiffs was resisted by the defendants on the ground that there used to remain a constant dispute regarding the wrong entries in the revenue record in favour of the plaintiffs and as such the family settlement was entered into , which was duly accepted, acted upon and implemented. When the plaintiffs tried to wriggle out of the same, the civil suit was filed in which the said decree was passed. They are holding the land adverse to the knowledge of the entire world and the suit of the plaintiffs is barred by limitation. Issues were framed on the pleadings of the parties and they were called upon to produce their evidence. On the basis of the evidence, so produced, and hearing counsel on their behalf, the learned trial court dismissed the suit. However, on appeal, having been preferred by the plaintiffs, their suit was decreed, after that appeal was accepted. Regular Second Appeal No. 1942 of 2010 -3- I have heard counsel for both the sides. At the outset, it was submitted by counsel for the defendants that the First Appellate Court committed an illegality while deciding the appeal without first deciding the application filed under Order 41 Rule 27 CPC by the plaintiffs and without taking into consideration the evidence, which the plaintiffs proposed to produce by way of additional evidence. He prayed that the judgment and decree passed by the First Appellate Court be set aside and the matter be remanded back for deciding the appeal afresh after deciding the application for additional evidence. It was not disputed at the time of arguments that the application was filed Order 41 Rule 27 CPC by the plaintiffs for leading additional evidence and the same was never decided by the First Appellate Court. No doubt, a reference has been made in paras No. 9 and 10 of the judgment of that Court, but it is very much clear that the same was never decided, though the law required that the same should have been decided before deciding the appeal itself. That itself is a ground for setting aside the judgment and decree, so passed by the First Appellate Court. Accordingly, this appeal is hereby accepted. The judgment and decree of the first Appellate Court is set aside and the appeal is remanded back to it for deciding the same afresh after deciding the application under order 41 Rule 27 CPC. The parties are directed to appear before the First Appellate Court on 9.12.2010. (GURDEV SINGH) JUDGE October 04, 2010 PARAMJIT