IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 237 of 2000 Date of decision: 30.9.2010 Bidhi Chand and ors. …Appellants. Versus Kultar Chand and ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. J. R. Thakur, Advocate. For the Respondents : Mr. Rajnish K. Lall, vice Mr. K.D. Sood, counsel for respondents No. 1 & 4. Kuldip Singh , Judge (Oral) This appeal is directed against judgment and decree, dated 5.2.2000, passed by the learned District Judge, Hamirpur in Civil Appeal No. 76 of 1991 affirming judgment and decree, dated 9.5.1991, passed by the learned Sub Judge 1st Class (II), Hamirpur in Case No. 40 of 1988. Mansha Ram, predecessor-in-interest of respondents had filed a suit for possession against the appellants regarding land, more specifically described in the plaint, claiming 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes 2 1/3rd share of land measuring 7 Marlas in the land left by Orku Devi, which has been illegally occupied by the appellants No. 1 to 5. 2. The suit was contested by appellants No. 1 to 5 and they took preliminary objections of maintainability, estoppel, valuation and limitation. On merits, they contended that the entries in revenue record are correct and they are in possession of the suit land. It was denied that Mansha Ram was entitled to any share in the property left by Orku Devi. He was not related to Orku Devi. They have denied the correctness of mutation No. 320. Orku Devi had sold her entire property in the year 1971. Therefore, question of her being in possession of any land does not arise. The replication was filed, in which stand taken by appellants No. 1 to 5 was contested and case, as projected in the plaint, was reiterated. 3. The learned Sub Judge held that Mansha Ram was entitled to relief of possession, the suit was maintainable and not barred by limitation. The Sub Judge decreed the suit on 9.5.1991 and passed a decree for 7/40 share in land comprised in Khata No.3, Khatauni No.3, Khasra No.8, measuring 0-7 Marlas in favour of Mansha Ram and against appellants No. 1 to 5. The appellants had filed Civil Appeal No. 76 of 1991 against judgment and decree, dated 9.5.1991. The District Judge vide common judgment and decree, dated 30.11.1991 held that jurisdiction of the civil court in Civil Appeal No. 76 of 1991 was barred. The matter came up in this court as RSA No. 136 of 1992, which was decided by Division Bench of this Court on 22.9.1997 as follows:- 3 “ In this appeal the lower appellate court has taken the view that the decision of the Full Bench in Chuhniya Devi v. Jindu Ram (1991 (1) Simla Law Cases 223) applies and consequently the Civil Court has no jurisdiction to entertain the suit. The appellate court has set-aside the judgment of the trial court and remanded the matter to the trial court with a direction to the trial court to return the plaint to the plaintiff for presentation of the same in the court of competent jurisdiction. 2. It is seen from the judgment of the appellate court that the question whether the ruling of the Full Bench is applicable to the facts of the case, has not been considered at all by the appellate Judge. In such circumstances, the judgment of the appellate Judge is wholly unsustainable. 3. Before deciding to direct the trial court to return the plaint the appellate Judge ought to have considered whether the case is governed by the ruling given by the Full Bench on the facts of the case. Hence the order of the appellate Judge is set-aside and the matter is remanded back to the file of the District Judge for fresh disposal in accordance with law. The District Judge will hear the parties and give his findings on the facts and decide thereafter whether on those facts the ruling of the Full Bench will apply. The appeal is disposed of accordingly. There will be no order as to costs.” 4. The District Judge, after remand, decided the appeal on 5.2.2000 and affirmed the judgment and decree, dated 9.5.1991. Hence, the second appeal, which has been admitted on following substantial questions of law:- 1. Whether the suit filed by the plaintiffs was within time? 2. Whether the suit was within the jurisdiction of the civil court? 3. Whether Smt. Orku could succeed to the tenancy rights of her deceased husband Lakhu Ram? 4 5. The perusal of impugned judgment and decree, dated 5.2.2000 indicates that the learned District Judge has not considered and complied with the directions given by Division Bench in RSA No. 136 of 1992, decided on 22.9.1997. The Division Bench had directed the District Judge specifically to give his findings on the facts and decide the case, thereafter, whether on facts the law laid down by Full Bench in Chuhniya Devi v. Jindu Ram (1991 (1) Simla Law Cases 223) will apply. There is no whisper in the impugned judgment, dated 5.2.2000 regarding implication of law laid down in Chuhniya Devi in the facts of the present case. It is strange the District Judge, after remand, has not complied with the directions of the Division Bench, even though judgment, dated 22.9.1997 in RSA No. 136/1992 is on the record of District Judge file. In these circumstances, there is no alternative, but to remand the case to District Judge for deciding the appeal afresh in accordance with law in terms of directions given in Judgment, dated 22.9.1997 passed by the Division Bench in R.S.A. No. 136 of 1992. This being the position, it is not necessary to decide the aforesaid substantial questions of law. 6. No other point has been urged. 7. The result of above discussion, the appeal is allowed, judgment and decree, dated 5.2.2000, passed by the District Judge in Civil Appeal No. 76/1991 are set aside. The case is remanded to the District Judge, Hamirpur with a direction to decide the appeal afresh in terms of directions given in judgment, dated 22.9.1997 passed by 5 the Division Bench in R.S.A. No. 136 of 1992. The matter is quite old, therefore, the learned District Judge is directed to decide the appeal on or before 31.3.2011. 8. The parties through their counsel are directed to appear before the learned District Judge, Hamirpur on 22.10.2010. The Registry is directed to remit the record to learned District Judge immediately so as to reach well before the date fixed. No costs. September 30, 2010. (Kuldip Singh) (pankaj) Judge.