S.A.O.No. 23 of 2010(O&M) - 1- In the High Court of Punjab and Haryana at Chandigarh S.A.O.No. 23 of 2010(O&M) Date of Decision:October 28, 2010 Kaur Singh ---Appellant versus Surjit Singh and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Ashok Singla and Mr. Ravish Bansal, Advocates, for the appellant Mr.B.R.Mahajan, Advocate, for respondents No. 1 to 4 *** GURDEV SINGH, J. This second appeal has been preferred by Kaur Singh, appellant-plaintiff against the order dated 25.2.2010 passed by District Judge, Mansa, vide which he framed the following two issues and referred the same to the trial court for submitting its report by giving proper opportunities to the parties to adduce their evidence, in the appeal preferred by the respondents-defendants, Surjit Singh and others against the judgment and decree dated 15.9.2008, passed by Additional Civil Judge(Senior Division), Mansa, vide which the suit of the plaintiff was decreed:- 1. Whether the plaintiff is entitled for the possession of the suit land?OPP S.A.O.No. 23 of 2010(O&M) - 2- 2. Whether Gurdev Singh executed a registered and valid Will dated 17.3.1994 in favour of defendants No. 2 to 4? OPD An argument was raised by counsel for respondents-defendants at the outset that this appeal is not competent. Even if it is so, the same is ordered to be treated as revision. The plaintiff-Kaur Singh, filed suit for declaration to the effect that he is the owner of 1/3rd share of land measuring 129 Kanals 2 marlas situated in village Deluana Tehsil and District Mansa, fully detailed in the heading of the plaint, and that the judgment and decree dated 28.7.1994 passed in Civil Suit No. 932 dated 18.4.1994 in respect of this land in favour of defendants No. 1 to 4 is without jurisdiction, null and void and not binding on his rights and that on the basis of the decree, defendants No. 1 to 4 had no right to mortgage this land in favour of defendant No. 5 and consequently, prayed for the relief of joint possession. He pleaded in the plaint that his father, Gurdev Singh, was the sole owner of the land in dispute, which was inherited by himself and his other son Surjit Singh, defendant No. 1 and daughter Amarjit Kaur-defendant No. 2 after his death on 23.10.1998. They were the only natural legal heirs and as such he inherited 1/3rd share in this land. He had been cultivating the land jointly along with defendants No. 1 and 2, but was dispossessed after the harvesting of Souni crop of 2001 and when he made enqiuiry, he came to know about the above said decree had been obtained by defendants No. 1 to 4, which is the result of collusion and misrepresentation. The decree is without jurisdiction, null and void and has no binding effect on his rights. The suit was contested by defendants No. 1 to 4. In their S.A.O.No. 23 of 2010(O&M) - 3- written statement they admitted that Gurdev Singh was the owner of the land in dispute and that the decree dated 28.7.1994 was passed in their favour. They denied the other contentions made in the plaint and pleaded that they are coming in possession of the land in dispute from the last 15 years on the basis of a family partition. Gurdev Singh never challenged the decree during his life time. Moreover, he executed a registered Will dated 17.3.1994 in their favour while in sound disposing mind, bequeathing the land in dispute in their favour. On the pleadings of the parties following issues were framed by the trial court:- 1. Whether the plaintiff is entitled to the declaration, as prayed for? OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP 3. Whether the suit is time barred? OPD 4. Whether the plaintiff has got no locus standi to file the suit? OPP 5. Relief. On the basis of the evidence produced by the parties and after hearing arguments advanced by their counsel, the learned trial court decided all the issues in favour of the plaintiff and resultantly decreed his suit. The defendants preferred appeal in which the above said order was passed. I have heard counsel for both the sides. It has been submitted by counsel for the plaintiff that the order passed by the First Appellate Court apparently suffers from illegality as even in the absence of the issues, so framed, findings were recorded by the S.A.O.No. 23 of 2010(O&M) - 4- learned trial court on the basis of the evidence produced by the parties and in that eventuality the Appellate court was required to record the findings itself in stead of referring those issues to the trial court for submitting its report after giving the parties an opportunity of producing their evidence. On the other hand, it has been submitted by counsel for the defendants that in the absence of specific issues, defendants were not in a position to lead their evidence and in case the report had not been called for from the trial court, they would have been prejudiced. It cannot be said that such order suffers from any illegality A perusal of the judgment of the trial court leaves no doubt that the defendants did produce their evidence for proving the Will and the trial court also, while deciding Issue No. 1, gave a finding to the effect that this Will is shrouded by suspicious circumstances and as such not a genuine Will. After recording the findings on the issues, the suit of the plaintiff was decreed for possession also. In that eventuality, the First Appellate Court, even if it had came to the conclusion that proper issues were not framed, was required to record the finding itself after framing the additional issues. Such an order cannot be sustained and while exercising the revisional jurisdiction, the same is hereby set aside. The District Judge, Mansa, is directed to decide the appeal after recording the finding on the issues framed by it and also the findings on the issues framed by the trial court. Parties are directed to appear before District Judge, Mansa, on 30.11.2010. (GURDEV SINGH) JUDGE October 28, 2010 PARAMJIT