Zaminder Dharmik & Shekshnik Nyas vs Siddhanath (Dead) By Lrs

4. Background facts in a nutshell as projected by appellant are as follows:

5. The present case relates to a land measuring 3.23 acres belonging to the ancestors of Rao NihaI Karan Jamindara Bada Ravala of Indore and later on was a part of a religious and educational trust. The appellants are its trustees. The land in dispute is an important place where the appellant trust is carrying out annual Dussehra Puja even prior to independence. The Zamindar family used to perform puja from generation to generation. There was no dispute whatsoever raised about the said land upto 1969. The respondent was merely a vegetable seller who used to collect vegetables and fruits from the land on contract from the trust.

6. In 1969, Government issued a notice for ejectment under Section 248 of the M.P. Land Revenue Code (in short 'the Code') claiming the land to be a land of the Government and the appellant was dispossessed.

11. In pursuance of the application for restoration of possession in view of the aforesaid order dated 19.9.1974, the Tehsildar ordered restoration of possession to the appellant. In pursuance of the said order of the Tehsildar, the Patwari went to the spot and made a report that the place was in possession of the plaintiff/respondent's father Shri Siddhanath. The appellant, therefore, applied for an order before the Tehsildar. The Tehsildar on the one hand passed an order seeking clarification from the Board of Revenue about the area of the land and at the same time served a copy of the appellant's application to Sri Siddhanath, father of the Respondent.

16. Siddhnath, father of the respondent, in the meanwhile filed a civil suit No.259A/1981 for declaration of title and for injunction against the appellant and Rao Nihal Karan much after the expiry of one year from the date of order of Sub- Divisional officer dated 19.9.1974. The suit was thus barred under Section 57(3) of the M.P. Land Revenue Act, 1959 (in short the 'Act'). However, in the said suit the appellant filed an application for discovery of documents. The father of the respondent did not file the said documents and the said suit was dismissed on 17.8.1983 under Order X1 Rule 21 CPC. Order XI Rule 21 CPC reads as under: "Order XI. discovery and Inspection.

12. Siddhanath filed an appeal challenging the order dated 19.9.1974 which was dismissed.

Rule 21. No-compliance with order for discovery - (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.

(2) Where an order is made under sub-

21. As the appellant is a religious and charitable trust, the trustees could not collect the relevant documents of the ancestors of Zamindara Bada Ravala nor could timely lead the evidence. However, the appellant filed some documents and memo of appeal presented by Siddhnath which was allowed to be taken on record.

23. The trial Court rejected the said application.

24. The appellant also filed an application under Order VI Rule 17 for amendment of the written statement for inserting very important facts including the fact that the dismissal order dated 17.8.83 of the previous suit make the present suit as not maintainable. The same was also rejected.

25. The trial Court vide judgment and order decreed the said suit on 31.1.1997.

26. Aggrieved by the judgment of the trial Court, the appellant herein filed first appeal before the Additional District Judge, being First Appeal No.3 of 1997.

27. The IIIrd Additional District Judge, Indore vide its order dismissed the first appeal on 30.1 1999.

28. Second appeal was filed which as noted above was dismissed.

30. In our considered view the questions (ii), (iii) and (vi) are prima facie substantial questions of law which need to be adjudicated. Accordingly we set aside the order of the High Court and remit the matter to it for hearing the second appeal on the questions (ii), (iii) and (vi) as quoted above. We make it clear that though prima facie there appears to be substantial questions of law, the High Court shall be free to decide the matter in accordance with law.

31. Appeal is allowed without any orders as to costs.