IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 218 of 2000. Date of decision: 29.4.2010. Parmeshwari Dass & anr. ….. Appellants. Vs. Sadhu Ram & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : M/s K.D. Sood and Rajnish K.Lall, Advocates. For the Respondents : Mr. Ramesh Sharma, Advocate vice Mr. N.K.Thakur, Advocate. Kuldip Singh, Judge (Oral). The appellants were plaintiffs in case No. 97/86 decided on 28.12.1992 by the learned Sub Judge Ist Class, Court No. II, Amb, District Una. The learned Sub Judge had partly decreed the suit. The appellants filed Civil Appeal No. 38/93(185/94). The respondents Sadhu Ram etc. had also filed Civil Appeal No. 919/93 (179/94). Both these appeals were decided by learned Additional District Judge (1) Kangra at Dharamshala (Camp at Una), H.P. by common judgement, decree dated 5.1.2000. The Civil Appeal No. 38/93 (185/94) was dismissed and Civil Appeal No. 19/93 (179/94) was allowed. The appellants have come in second appeal against the common judgement dated 5.1.2000 passed in Civil Appeal No. 38/93 (185/94) and Civil Appeal No. 19/93 (179/94). Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The further case of the appellants is that they had filed a suit for declaration and permanent prohibitory injunction against the respondents on the grounds that suit property is Joint Hindu Family and coparcenery property and they have challenged the will dated 4.10.1985 and gift dated 7.5.1976. The respondents had contested the suit and denied the claim of the appellants. In view of ultimate order, which I intend to pass, it is not necessary to give further details of the case. On the pleadings of the parties, the following issues were framed:- 1. Whether the will executed by Rup Singh in favour of defendants No. 1 is illegal, void and contrary to law, as alleged? OPP. 2. Whether the parties constitute a joint Hindu coparcenery property, as alleged? OPP. 3. Whether the suit is bad for multifariousness? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the plaintiffs are estopped by their act and conduct? OPD. 7. Whether the plaintiffs have no locus standi? OPD. 7(A). Whether deceased Roop Singh executed a vlid will in favour of Sadhu Ram defendant, if so, its effect? OPD. 7(B). Whether the gift executed by deceased Roop Singh is vitiated by fraud, mental incapacity and undue influence, if so its effect? OPP. 8. Relief. 3. The issues No. 1, 2, 3, 5, 6, 7 and 7(B) were answered in negative and issues No. 4 and 7(A) were answered in affirmative …3… and the learned trial court ultimately on 28.12.1992 decreed the suit. The appeal filed by the appellants against the judgement, decree dated 28.12.1992 was dismissed, whereas the appeal filed by the respondents against judgement, decree dated 28.12.1992 was allowed by the learned Addl. District Judge by a common judgement and decree dated 5.1.2000. The appellants have thus come in second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the findings of the District Judge are vitiated for non-consideration of plea of coparcenery property on the ground of Joint Hindu Family Property having been given up by the appellant? 2. Whether in view of the fact that the property was traced to Nidhan Singh by jamabandi Ex. P-4 which devolved upon Roop Singh, whose sons and grand- sons were the appellants had acquired the right in the same by birth and hence, Roop Singh could not will or gift the coparcenery interest therein? 4. The appellants in the grounds of appeal have taken the plea that they had filed an application, under Order 41 Rule 25 CPC (sic Order 41 Rule 27 CPC) for placing on record the copy of jamabandi (missal hakiyat) prepared by the consolidation department which proves that the property in dispute is a coparcenery property. The said application was not disposed of in accordance with law by the court below, who has not exercised judicial discretion in disposing of the same or passing the order in accordance with Order 41 Rule 27 CPC. …4… 5. I have heard the learned counsel for the parties and have also gone through the record. It has come to my notice during hearing that learned Additional District Judge on 5.1.2000 firstly dismissed the appeal and thereafter on 5.1.2000 dismissed the application under Order 41, Rule 27 CPC. In these circumstances, I do not consider it proper to decide the substantial questions of law referred above. 6. The appellants have filed an application under Order 41 Rule 27 CPC on 30.5.1994 praying therein to place on record by way of additional evidence copy of missal hakiyat istemal pertaining to the year 1979-80 regarding the land in dispute. It has been stated in the application that misal hakiyat so prepared by the consolidation authority was neither within the knowledge of the appellant nor was disclosed by the Patwari Halqua, and, therefore, the said missal hakiyat could not be produced in the trial court at the time of evidence. This application was contested and reply dated 13.3.1997 was filed. The learned Addl. District Judge dismissed the Civil Appeal No. 38/93 (185/94) and allowed Civil Appeal No. 19/93 (179/94) by a common judgement and decree dated 5.1.2000. After the decision in the appeals, the learned Additional District Judge took up additional evidence application under Order 41 Rule 27 CPC on 5.1.2000 and dismissed the same by passing the following order:- “The appeal is dismissed vide my separate judgement of even date. In view of the disposal of the main appeal application filed under order 41 Rule 27 C.P.C. by the appellants becomes infructuous. Even otherwise also, since the documents i.e. revenue record, sought to be …5… produced was in the knowledge of the appellants, or, to put it precisely, it is not established that despite the due diligence, such documents were not within the knowledge of the appellants or could not after the exercise of due diligence be produced by them at the time when the decree in appeal was passed against them, as such, the application under order 41 Rule 27 C.P.C. is not tenable and the same is hereby dismissed. The file after due completion be consigned to record room, after placing one attested copy of the judgement.” 7. In RSA No. 169 of 2000 similar point came up for consideration before this Court. In that case also, an application under Order 41 Rule 27 CPC was decided by the learned lower appellate court after the decision of the appeal. In RSA No. 169 of 2000 decided on 30.3.2010, it has been held that learned Additional District Judge had committed procedural error in deciding the application under Order 41 Rule 27 CPC after the decision of the main appeal. The appellants had filed the application under Order 41 Rule 27 CPC, therefore, this application should have been decided at-least alongwith the main appeal, if not prior to the decision in the main appeal. In the present case also, the learned Additional District Judge has committed the same error and he has decided the application under Order 41 Rule 27 CPC after the decision of the main appeal. In fact after the decision of the main appeal, nothing was left before the learned Additional District Judge for decision in the appeal, which was already decided. On this ground alone, the impugned judgement and decree are not sustainable. …6… 8. The learned counsel appearing on behalf of the respondents has submitted that appellants have already given up the plea of Joint Hindu Family Property, which is clear from paragraph-9 of the judgement of the trial court. The appellants had filed the suit by taking the plea that property is coparcenery property and Joint Hindu Family property. In case the contention of the learned counsel for the respondents is accepted, in that situation, the appellants at the most had given up the plea of Joint Hindu Family property and not the coparcenery property. The appellants intended to connect the suit property through missal hakiyat Bandobast, which they intended to place on record by way of additional evidence. Therefore, even if the appellants had given up the plea of Joint Hindu Family property, still they have the right to prove their case that the suit property is coparcenery property. In any case, the learned Additional District Judge was required to look into the application under Order 41 Rule 27 CPC before the decision of the main appeal. 9. In view of above discussion, the appeal is allowed. The judgement, decree dated 5.1.2000 and order dated 5.1.2000 passed on application under Order 41 Rule 27 CPC by the learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No. 38/93 (185/94) and Civil Appeal No. 19/93 (179/94) are set-aside. The case is remanded to learned Additional District Judge, Una with a direction to decide the application under Order 41 Rule 27 CPC and appeals afresh in accordance with law after giving opportunity to the parties. 10. The parties through their counsel are directed to appear before the learned Addl. District Judge, Una on 24.5.2010. The …7… record of the case be returned to learned Additional District Judge, Una so as to reach the said court well before the date fixed. The appeals in the learned lower appellate court were filed on 4.2.1993 and 28.1.1993, therefore, both the appeals are old. The learned Addl. District Judge is directed to decide the appeals expeditiously and preferably within six months from 24.5.2010. April 29, 2010. ( Kuldip Singh ), (Hem) Judge.