SAO No.35 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SAO No.35 of 2011 (O&M) Date of decision 11.7.2011. Jagdev Singh and another ...... Appellants. versus General Public ...... Respondent. Present : Mr. Rakesh Gupta, Advocate for the appellants. K.C.PURI . J. The present appeal has been directed by the appellants against the order 22.4.2011 passed by learned Additional District Judge, Patiala who remanded the case back to the trial Court as the trial Court dismissed the suit vide judgment and decree dated 25.2.2011. Gobind Singh has filed this suit claiming himself to be brother of Gurdev Singh against the General Public with the allegation that Gurdev Singh has not been heard for more than seven years and he is presumed to be dead. The plaintiff is entitled to succeed the estate of Gurdev Singh in respect of the suit property being his only legal heir. It is pleaded that SAO No.35 of 2011 2 Gurdev Singh was unmarried and issueless and he had left the house on 15.3.1975 and since then his whereabouts are not known and is not heard for more than seven years by the relations and friends and would naturally have heard of him and hence he be presumed to be dead. The plaintiff made so much efforts to trace Gurdev Singh but to no avail. It is further pleaded that as per pedigree table, the plaintiff is the only person entitles to the estate of Gurdev Singh. 2. During the pendency of proceedings, Gobind Singh is stated to have died and his sons Jagdev Singh and Pyara Singh son of Jang Singh were arrayed as his legal representatives. 3. In the ex-parte evidence, plaintiff himself appeared as PW-1 and also examined Surjit Singh as (PW-2) besides Labh Singh as (PW-3). 4. The learned trial Court dismissed the suit of the plaintiff on the ground that legal representatives of Gurdev Singh son of Harnam Singh or Harnam Singh have not been arrayed as plaintiffs. Harnam Singh has four sons but in the pleadings plaintiff claimed himself to be sole legal representative. 5. Feeling dis-satisfied with the above said judgment and decree dated 25.2.2011, the plaintiff preferred the first appeal. 6. The First Appellate Court accepted the appeal and remanded the case for fresh decision under Order 41 Rule 23 -A of the Code of Civil Procedure by granting one effective opportunity to the plaintiff to disclose the names of all the legal heirs of Gurdev Singh. It is further observed that those shall be impleaded as defendants in the suit and after issuance of notice to the said defendants, SAO No.35 of 2011 3 the case be decided afresh as per law. The evidence, if any, recorded during the original trial and the admission in the pleadings of the parties, if any would also be taken into consideration. 7. Against the said judgment, the plaintiff has preferred the present appeal. 8. Learned counsel for the appellants has submitted that the First Appellate Court has wrongly decided that Gurdev Singh died seven years prior to the filing of the suit. In fact, the First Appellate Court should have observed that Gurdev Singh would be presumed to have died on the date of filing the suit. The counsel for the appellant has further stated that observations made in paragraph No.16 of the judgment of First Appellate Court, regarding other relations would create hurdle in deciding the case by the trial Court. 9. I have carefully considered the said submission but do not find any force in that submission. 10. The First Appellate Court has remanded the case for fresh decision after arraying all the probable legal heirs of Gurdev Singh deceased, whose inheritance is in question. The apprehension of the counsel for the appellant, referred to above, can be re-addressed by making the observation that the learned trial Court shall decide the case afresh after arraying all probable legal heirs of Gurdev Singh, without being influenced by observations of first Appellate Court regarding date of death and relationship of Gurdev Singh with persons mentioned in that order/judgment. SAO No.35 of 2011 4 11. So, finding no merit in the present appeal, the same stands dismissed. 12. The plaintiff is directed to appear before the trial Court on 16.8.2011. 13. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 11, 2011 sv