RSA No.2206 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2206 of 2006 (O&M) Date of Decision: 02.07.2009 Lila Dhar ...Appellant VERSUS Bhagat Ram ...Respondent CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr. R. T. Redhu, Advocate for the appellant. Mr. R. D. Bawa, Advocate and Mr. Randhir Bawa, Advocate for the respondent. *** AJAY TEWARI J. This appeal has been filed against the concurrent judgments of the courts below dismissing the suit of the plaintiff-appellant in which he had claimed that certain property was joint between him and the sole defendant-respondent. It was held by both the courts below that the said property was directly inherited by the said respondent from his grandfather's brother Bagha Ram. Learned counsel for the appellant has proposed the following questions of law:- “a) Whether a case can be finally decided without deciding the applications lying pending in the said case. b) Whether admission in court by defendant can be discarded mechanically despite the best proof of RSA No.2206 of 2006 -2- evidence? c) Whether the partition of ancestral property can be denied in an illegal manner and mechanically? d) Whether the impugned judgments and decree are against the evidence on record and have caused manifest injustice to the plaintiff? e) Whether the impugned judgments and decree are illegal, erroneous and are liable to be set aside? f) Whether the plaintiff can be non-suited flimsicaly and against the evidence on record?” It is not disputed by learned counsel for the appellant that questions no. 'b', 'c', 'd', 'e' and 'f' are questions of fact. He has not been able to show to me that the findings recorded are not only erroneous but are also perverse. As regards question no.'a', in normal circumstances if it was found that such an application was pending when the main case was decided, the matter would have to be remanded back to the Lower Appellate Court for a fresh decision after deciding the application. However, following order was passed by this Court with regard to question no.'a' on 24.04.2009:- “The whole grouse of the appellant in this case is that the Lower Appellate Court has decided the appeal without deciding his application under Order 41 rule 27 CPC. Learned counsel appearing on behalf of the respondent has not disputed this fact. However, he has further stated that by way of aforesaid application for leading additional evidence, the appellant wanted to place reliance upon the statement of DW1-Bhagat Ram RSA No.2206 of 2006 -3- which has been placed on record as Annexure A-3 with the appeal and he has no objection if this statement is taken into consideration while deciding the present appeal. List on 2.7.2009 for arguments.” Against this backdrop of fact learned counsel have referred me to document Annexure A-3 which was the statement made by the respondent in the previous suit. Learned counsel for the appellant has argued that in the said statement the respondent has clearly admitted that the property in dispute was ancestral property. However, learned counsel for the respondent has read to me the entire statement and, I find that in the context that the said statement was made, it cannot be held that the said statement is an admission that the nature of the property was ancestral. What was stated that originally the property was ancestral and, in a partition between the Sita Ram (grandfather of the respondent) and his brother Bagha Ram the property fell to the share of Bagha Ram who gave it to the respondent. Thus it cannot be held that in this statement the respondent made an admission that the property continued to be an ancestral in nature. In this view of the matter, finding no merits, I dismiss this appeal. No costs. ( AJAY TEWARI ) July 02, 2009 JUDGE ashish