IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (Ord.) No.244 of 2003. Judgment reserved on: 12.11.2008 Date of decision: 5.12.2008 Durga Ram and another …….Appellants Vs. Nand Lal and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. K.D. Sood, Advocate. For the Respondents : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. Kuldip Singh, Judge. CMP(M) No.350 of 2007 1. Allowed. Delay condoned, abatement set aside and name of respondent No.3 Smt. Chinti Devi is deleted from the array of parties and in her place her legal representatives mentioned in para-2 of the application are brought on record. The necessary correction be carried out in the memo of parties. RSA No.244 of 2003 2. The appellants, who were defendants No.1,2, have filed this appeal against judgment dated 3.5.2003 passed by learned Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… District Judge, Bilaspur in Civil Appeal No.5 of 2002, setting aside judgment, decree dated 4.12.2001 passed learned Sub Judge Ist Class, Ghumarwin in Case No.348/1 of 1997 and remanding the case to the trial Court for afresh decision. 3. The facts in brief are that respondents No.1,2 had filed a suit against appellants and Chinti Devi on the grounds that the land comprised in Khasra Nos. 87,154 and 155 min, khata/khatoni No.52 min/75, measuring 10-2 bighas, situated in village Luharwin, Pargana Tiun, Tehsil Ghumarwin, Distt Bilaspur was owned and possessed by their grand father Gangu Ram, who had two sons, Shiv Ram father of respondents No.1,2, and Ram Ditta husband of Parsinu . Gangu Ram had bequeathed his entire property including the suit land in favour of Shiv Ram by executing a Will and then Shiv Ram succeeded to the property on the basis of Will left by Gangu Ram. Parsino filed suit in the Court of learned Sub Judge, Bilaspur against Shiv Ram which was compromised and vide judgment, decree dated 30.8.1951, only life interest was created in favour of Parsinu qua the suit land. Parsinu was restrained from alienating or creating any encumbrance on the suit property. The suit land was to revert to Shiv Ram and thereafter to respondents No.1,2. Parsinu had no right to create tenancy as she could not pass a better title than she had. However, Parsinu created tenancy on the suit land which was invalid. In these circumstances, appellants were wrongly declared owners under the H.P. Tenancy and Land Reforms Act. The revenue record in favour of the appellants after …3… the death of Parsinu was wrong and illegal. On these grounds, respondents No.1,2 filed suit for possession of the suit land and declaring revenue entries showing appellants owners in possession of the suit land null and avoid. 4. The suit was contested by the appellants by filing written statement, they took several preliminary objections. On merits they did not deny that the suit land was owned by one Gangu Ram. They also admitted that Parsinu had filed suit against Shiv Ram father of respondents No.1,2 which was decided on 30.8.1951. They however, denied that Parsinu had only life interest in the suit land. They pleaded that after coming into force of Hindu Succession Act, Parsinu had become absolute owner of the suit land, the tenancy created by her was valid. On the death of Parsinu the suit land was not to go back to respondents No.1,2, the appellants, who were tenants on the suit land, became owners after coming into force of H.P. Tenancy and Land Reforms Act. Parsinu had legally inducted Bardu father of the appellants as tenant on the suit land. The appellants prayed for dismissal of the suit. 5. The respondents No.1,2 filed replication and reiterated their stand. The learned Sub Judge dismissed the suit of respondents No.1,2 on 4.12.2001. The decision dated 4.12.2001 was assailed by way of appeal by respondents No.1,2, which was accepted by learned District Judge on 3.5.2003 and remanded the suit, hence this appeal. …4… 6. I have heard Mr. K.D. Sood, learned counsel for the appellants and Mr. G.D. Verma, Sr. Advocate assisted by Mr. Romesh Verma, learned counsel for the respondents. The learned District Judge in the impugned judgment, has set aside the findings of trial Court on issue No.5 of res-judicata. Thereafter learned District Judge held that it would be inappropriate for the Ist Appellate Court to appreciate the evidence on issue No.1. In the impugned judgment, it has been further observed that issues No.2 to 4 and 6 to 8 were decided against appellants who had not filed any cross-objections against findings on issue No.2 to 4 and 6 to 8. The learned District Judge without further discussion in the matter ordered the remand of the case for afresh decision. The learned District Judge in the impugned judgment has not directed the trial Court to hold further enquiry or record additional evidence. In other words, the learned District Judge did not find any defect in the trial except remanding the suit after reversing findings on issue No.5 and returning the findings that it would not be appropriate to Ist Appellate Court to decide issue No.1 for the first time in the appeal. The entire record was before the learned district Judge. The discussion in the impugned judgment is dominated by the decision on issue No.5 by referring judgment dated 27.3.1995 in case No.10-1 of 1995/87 decided by learned Sub Judge Ist Class, Ghumarwin and judgment dated 3.5.2003 in Civil Appeal No.64 of 1995 decided by learned District Judge, Bilaspur. …5… 7. FAO No.243 of 2003 was filed in this Court against the decision dated 3.5.2003 in Civil Appeal No.64 of 1995 decided by learned District Judge, Bilaspur. FAO No.243 of 2003 has been separately allowed by this Court and the judgment dated 3.5.2003 has been set aside and the case has been remanded to the learned District Judge for afresh decision. The learned District Judge has not properly appreciated the material on record, he has erred in remanding the case to the trial Court instead of deciding the case himself. In these circumstances, the appeal deserves to be allowed. 8. No other point was urged. 9. The result of above discussion, the appeal is allowed. Judgment dated 3.5.2003 passed by learned District Judge, Bilaspur in Civil Appeal No.5 of 2002 is set aside. The case is remanded to learned District Judge with a direction to restore the appeal to its original number, the matter is quite old and therefore, to decide the appeal within six months from the date of receipt of the record. The parties through their counsel are directed to appear before the learned District Judge, Bilaspur on 30.12.2008. The Registry is directed to send the records of the case of Courts below so as to reach there before the date fixed. ( Kuldip Singh ) Judge. December 5 ,2008 (sks)