* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 164/2009 Date of Decision: December 21, 2009 RAM MEHAR & ANR. Appellants Through; Mr. VipinK. Singh,Advocate versus JAGWATI&ORS. Respondents Through: Nemo. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whetherreportersoflocalpapermay be allowed to see the judgment? (2) Tobereferredto thereporterornot? (3) Whetherthejudgmentshouldbereported in the Digest ? JUDGMENT ARUNA SURESH. J. (Oral) 1. Appellantand Respondentsare real brothersand sisters.Duringthe pendencyofthe suitTaraChand expiredand he is beingrepresented through his Legal Heirs. In 1912 Kalu Ram settled in Village Kushak, Hiranki. His son Pratap Singh inherited piece of land measuring 1950 sq. yds. in the abadi area and agricultural land measuring48bigas and 18 biswasin the said villageonthe death of RSA 164/2009 Page 1 of 5 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Kalu Ram. Pratap Singh, during his hfe time partitioned his entire residential property among his four sons in the following manner;- 1. Kartar Singh - 500 Sq. Yds. 2. Sardar singh - 450 Sq. Yds., 3. Mukhtar Singh - 448 Sq. Yds., 4. Tara Chand - 500 Sq. Yds. 2. Pratap Singh died leaving behind above said four sons and three married daughters. Respondent No.l claimed her right in the propertyby inheritancefrom her father on the basis of a Will dated 1.09.1982. She started raising construction over the vacant suit land. Apprehendingthreat to his possessionin the suit land, Tara Chand filed the suit againstthe Respondentsseeking decree for declaration that Will dated 1.09.1982 was null and void and Respondent.had no right, title or interestof any kind in the suit propertywith consequent reliefof permanentinjunctionfor restrainingthe Respondents,their agents, servants, attorney, etc. from dispossessing and from interferingin their peacefulpossessionof the suit land. 3. Maintainability of the suit was challenged by the Respondent in her written statement. Trial court framed a preliminary issue on 10.09.2002 to the effect, 'whether this suit is maintainable in its RSA 164/2009 Page 2 of 5 present form?' However, oblivious of this issue, the trial court framed issues on 2.04.2003. One of the issues framed was again "Whether the suit is not maintainable being without any cause of action? " 4. The trial court took up preliminary issue for decision being a question of law. Vide its detailed judgment and decree dated 20.09.2003, the suit of the Appellant was dismissed. Against this order, the appellantsfiled an appeal being RCA No.192/2003. The Appellate Court vide its judgment and decree dated 2.09.2009 set aside the judgment and decree of the trial court dated 20.09.2003and remanded back the suit with certain directions to the trial court. 5. Appellantshave challengedthe impugnedjudgmentof the Appellate Court in this appeal. \ 6. Mr. Vipin K. Singh, learned counsel for the appellants have submitted that trial court as well as the Appellate Court went wrong in dismissing the case of the appellants on the basis of statement of Tara Chand recorded under Section 10 of Code of Civil Procedure and also that the suit was barred by period of limitation as relief of declaration was concemed. He has also submitted that by way of RSA164/2009 Page 3 of 5 impugnedjudgment,the appellatecourth!as given the licenceto the Respondents to raise construction on the suit land, leaving the appellants to seek remedy at the end of the suit. Therefore, he has submitted that substantial questions of law are required to be formulated in this appeal. 7. The trial court is within its right to examine plaintiff under Order 10 CPC on the first hearing of the suit and the mandate in this rule is mandatory in nature as the court has no power to examine the plaintiff or other party appearingin person on any other subsequent hearing. Therefore, since the trial court recorded the statement of Kalu Ram within the ambit of Order 10 Rule 2 CPC, challenge to the procedureadoptedby the trial Court,upheld by the AppellateCourt, to my mind, does not raise any substantial question of law to be formulated. 8. As regards question of limitation, the court is within its right to consider the limitation suo moto even if not pleaded. The question of maintainability of the suit which is a pure question of law in view of provisions containedin Order 14 (2) (b) CPC is required to be taken first and adjudicated upon, Wiich was rightly done in this case. RSA 164/2009 Page 4 of 5 5 9. It is not disputed that criminal proceedings are pending against the appellants in respect of the property in suit. Complaintswere also lodged by the Respondents. The appellants, therefore, are not in possession of the suit as per the record. 10. Under these circumstances, the Appellate court was pleased to remand back the case to the trial court for adjudication on merits. Hence, I do not find anyillegalityor infirmityin the impugnedorder. No substantialquestionoflawarisesin this appealand thecase isyet to be decided on merits. 11. Hence, I find no merits in this appeal, the same is accordingly dismissed. DECEMBER 21, 2009 ^4 vk (ARUNA SURESH) JUDGE RSA 164/2009 Page 5 of 5