Sant Ram Vs. Harbans Singh

Sant Ram vs Harbans Singh

Disposition Appeal allowed Court Punjab and Haryana Decided Sep 16, 1999

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Citation: sooperkanoon.com/629099
Court: Punjab and Haryana High Court
Judge: R.L. Anand, J.
Decided On: Sep 16, 1999
Case Number: S.A.O. No. 32 of 1988
Subject: Civil
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestra...

Key legal issue: Civil
Outcome / disposition: Appeal allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 18, Rule 17A - Order 41, Rules 23 and 27

Parties & Advocates

Appellant / Petitioner

Sant Ram

Advocate G.S. Gandhi, Adv.

Respondent

Harbans Singh

Advocate Gurnam Singh, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 18, Rule 17A - Order 41, Rules 23 and 27
Reported In: (2000)125PLR546

Excerpt

.....contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of..........of additional district judge, patiala, who allowed the appeal of the defendant and set aside the judgment and decree dated 2.4.1987, passed by the court of sub judge, 2nd class, rajpura, who decreed the suit of the plaintiff-respondent.2. the brief facts for the purpose of the present order can be described in the following manner, shri harbans singh filed a suit for possession of agricultural land measuring 7 biswa was fully described in the head-note of the plaint against shri sant ram, by alleging that defendant had encroached upon that area. of course, the suit was contested by shri sant ram. the trial court framed the following issues:-1. whether the plaintiff is entitled to possession on the basis of naksha tawafat as alleged? opp2. whether the report of field kanugo is without notice, if so its effect? opd3. whether the field kanungo's report is without compliance of instructions of financial commissioner, if so its effect? opd4. whether the plaintiff has no cause of action? opd5. whether the defendant is entitled to special costs? opd6. whether the suit is not maintainable? opd7. relief.the parties led oral as well as documentary evidence in support of their case and finally the suit of shri harbans singh was decreed vide judgment and decree dated2.4.1987. aggrieved by this judgment and decree shri sant ram filed the first appeal before the court of additional district judge, patiala.3. it may be mentioned here that during the pendency of the suit the plaintiff filed an application for leading additional evidence under order 18 rule 17-a c.p.c. in the trial court, which was dismissed.4. when the appeal was being heard by the court of additional district judge, patiala, he came to the conclusion that the trial court wrongly dismissed the application of the plaintiff for leading additional evidence. resultantly, the first appellate court set aside the judgment and decree of the trial court and remanded the case to the trial court for a particular date......

Full Judgment

R.L. Anand, J.

1. This is a second appeal against the order and has been directed against the judgment dated 5.8.1988, passed by the Court of Additional District Judge, Patiala, who allowed the appeal of the defendant and set aside the judgment and decree dated 2.4.1987, passed by the Court of Sub Judge, 2nd Class, Rajpura, who decreed the suit of the plaintiff-respondent.

2. The brief facts for the purpose of the present order can be described in the following manner, Shri Harbans Singh filed a suit for possession of agricultural land measuring 7 Biswa was fully described in the head-note of the plaint against Shri Sant Ram, by alleging that defendant had encroached upon that area. Of course, the suit was contested by Shri Sant Ram. The trial Court framed the following issues:-

1. Whether the plaintiff is entitled to possession on the basis of Naksha Tawafat as alleged? OPP

2. Whether the report of Field Kanugo is without notice, if so its effect? OPD

3. Whether the Field Kanungo's report is without compliance of instructions of Financial Commissioner, if so its effect? OPD

4. Whether the plaintiff has no cause of action? OPD

5. Whether the defendant is entitled to special costs? OPD

6. Whether the suit is not maintainable? OPD

7. Relief.

The parties led oral as well as documentary evidence in support of their case and finally the suit of Shri Harbans Singh was decreed vide judgment and decree dated2.4.1987. Aggrieved by this judgment and decree Shri Sant Ram filed the first appeal before the Court of Additional District Judge, Patiala.

3. It may be mentioned here that during the pendency of the suit the plaintiff filed an application for leading additional evidence under Order 18 Rule 17-A C.P.C. in the trial Court, which was dismissed.

4. When the appeal was being heard by the Court of Additional District Judge, Patiala, he came to the conclusion that the trial Court wrongly dismissed the application of the plaintiff for leading additional evidence. Resultantly, the first appellate Court set aside the judgment and decree of the trial court and remanded the case to the trial Court for a particular date. Aggrieved by the judgment dated 5.8.1988, the present appeal has been filed by Shri Sant Ram.

5. This appeal I am disposing of with the assistance of Shri G.S. Gandhi, Advocate, on behalf of the appellant and Shri Gurnam Singh, Advocate, who appeared on behalf of the respondent.

6. In this case, this Court feels that there was hardly any justification on the part of the Additional District Judge, Patiala, to remand the case. The first appellate court could entertain the application under Order 41 Rule 27C.P.C. or could give the directions to the trial Court to record evidence on the application under Order 18 Rule 17-A C.P.C. filed by the plaintiff and to send the report. After receiving the report from the trial Court or after recording the evidence of the parties on the applicationunder Order 41 Rule 27 C.P.C. the first appellate Court could have disposed of the appeal on merits.

7. Resultantly, this appeal is allowed, the order dated 5.8.1988, is hereby modified and the directions are given to the Additional District Judge, Patiala, to re-admit the appeal to its original number. It is stated at the bar that the record of the case is lying with the trial Court. Directions are given to the trial Court to take the additional evidence of the plaintiff and to remit the record to the first appellate Court which shall take into consideration the additional evidence so recorded by the trial Court while disposing of the applications on merits. The trial Court will also give a chance to the defendant to rebut the additional evidence of the plaintiff. Directions are also given to the Additional District Judge, Patiala, to dispose of this appeal within six months, from the receipt of the additional evidence and record of the trial court. The parties through their counsel are directed to appear before the first appellate Court on 14.10.1999 Which may passes suitable directions in the matter copy of the order be given dasti and copy of the order be also sent to the Additional/District Judge, Patiala, for compliance.

Same Court & Year Punjab and Haryana · 1999 Same Parties Sant Ram vs Harbans Singh Same Subject Civil Same Judge R.L. Anand, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 18, Rule 17A - O...

Civil