RSA No. 2341 of 1983(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh RSA No. 2341 of 1983(O&M) Date of Decision: July 14 , 2011 Mahammad Umar and others ---Appellants versus Abdul Latif and others ---Respondents Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. M.S.Bedi, Advocate, for the appellants Mr. Som Nath Saini and Mr. Ashok Aggarwal, Advocates for the respondents. Mr. Narender Kumar Sharma, Advocate, for LRs of respondents No. 8 *** Gurdev Singh, J. This is the second appeal preferred by Mohammad Umar, Mandarsa Islamia Arbia Panipat and Madarsa Darul Ali, Deoband, appellants- defendants No. 1 to 3, against the judgment and decree dated 24.10.1983 passed by District Judge, Karnal, vide which he dismissed the appeal preferred by these appellants and other defendants against the judgment and decree dated 12.9.1977 passed by Sub Judge Ist Class, Sonepat, vide which he decreed the suit of respondent No. 1-plaintiff, for declaration to the effect that he is the RSA No. 2341 of 1983(O&M) -2- owner of the land, houses and shops in dispute. The plaintiff claimed himself to be the owner of the land in dispute situated in villages Sewa Kheri and Noorwala and the houses and shops situated at Panipat being the sole legal heir of late Mohd. Yusaf Ali Khan son of Nawab Ahmad Ali Khan. He pleaded in his plaint that the land, shops and the houses in dispute were owned by Mohd. Yusaf Ali Khan(Late Nawab), who is the son of Ahmad Ali Khan son of Nawab Gulam Mohamad whereas he is the great grand son of Nawab Gulam Mohamad. Defendants No. 1 to 3 got mutated the suit land in their favour on the basis of the Will alleged to have been executed in their favour by late Nawab. Similarly, defendant No. 5 and Bundu Khan-deceased, claimed title to the houses and shops on the basis of the Will executed in their favour by late Nawab. The Will in favour of the defendants is bogus, forged, result of misrepresentation and is null and void. Defendant Nos. 1 to 5 filed a joint written statement in which they admitted that Late Nawab was the owner of the land, houses and shops in dispute, who died on 16.6.1968. They denied the other contentions of the plaintiff and pleaded that late Nawab had only one son named, Mohamad Ali Khan and the plaintiff is not related to him at all. Two months before his death, he executed Will dated 15.4.1968 with his free will while in sound disposing mind and bequeathed the land, houses and shops in dispute in their favour. They are coming in possession thereof as owners of the suit land and other properties. They also took up the objection that the suit is barred by time and is wrongly valued for the purposes of court fee and jurisdiction. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the plaintiff is nephew of deceased Nawab Usaf Ali Khan and as such is the only heir? RSA No. 2341 of 1983(O&M) -3- 2. Whether Nawab Usaf Ali Khan made any valid will giving all his property to defendant Nos. 1 to 5, if so, when and its effect? 3. Whether the suit is bad for mis-joinder of parties or cause of action? 4. Whether the plaintiff is in possession of the suit property? If not its effect? 5. Whether full particulars of the suit property have not been given in the plaint? Is so to what effect? 6. Relief. After recording the findings on all the issues on the basis of the evidence produced by the parties and hearing counsel on their behalf, the learned trial court decreed the suit of the plaintiff. The appeal preferred by the defendants was dismissed. At the outset, it was submitted by the counsel for the defendants that an application for additional evidence was moved by the defendants before the first appellate court for producing certified copy of the written statement filed in one of the cases by Yusaf Ali Khan, by way of additional evidence, in which Yusaf Ali Khan had given the pedigree table and as per that pedigree table, the plaintiff is not at all related to him. That application was not decided by the first appellate court before deciding the appeal, which amounts to an illegality and is a sufficient ground for setting aside the judgment and decree of the first appellate court and remanding back the appeal for deciding the same afresh after the decision of that application. Counsel for the plaintiff was not able to controvert that contention of the counsel for the defendants. Thus, the substantial question of law arising in the appeal is, whether the judgment and decree of the first appellate court is liable to be set aside on the ground that it failed to decide the application filed by the defendants-appellants for producing RSA No. 2341 of 1983(O&M) -4- the additional evidence before deciding the appeal itself. It is well settled law that before deciding an appeal, the application filed for producing additional evidence must be decided. The omission on the part of the first appellate court to decide the application for additional evidence, before deciding the appeal, itself is a ground for setting aside the judgment and decree passed by it. Accordingly, the appeal is accepted. The judgment and decree of the first appellate court is set aside. The appeal is remanded back for deciding the same afresh after deciding the application for additional evidence. The parties are directed to appear before the District Judge, Panipat, on 24.8.2011. The learned District Judge to make all the endeavour to decide the appeal within a period of four months from the date of the receipt of the records. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE July 14, 2011 PARAMJIT