Gurbax Singh and Others vs Natha Singh and Others

Teja Singh, C.J.—This is a second appeal from the appellate order of S. Haqiqat Singh, Additional District Judge, Bhatinda. The facts briefly stated are as follows:

On the death of one Sundar Singh who held certain land as an occupancy tenant the Plaintiffs brought a suit for possession of the land on the ground that they were Sundar Singh''s reversioners. The suit was resisted by the defendants who are the landlords. They denied that the Plaintiffs were the reversionary heirs of the deceased occupancy tenant or that they had any right to succeed to the land left by him. The trial Sub-Judge framed the following issue: ,

Are the Plaintiffs reversionary heirs of late issueless Sunder and are entitled to get his ''Tarka'' (i.e. entitled to inheritance) and the mutation in dispute does not affect their rights?

The finding of the trial Sub-Judge was that the Plaintiffs had not been able to prove their relationship with Sundar. He further held that even if the Plaintiffs were the reversionary heirs of Sundar, since it was neither alleged by them nor proved that the land was occupied by the common ancestor they had no right to inherit it in preference to the landlords. Accordingly the plain-tiffs'' suit was dismissed with costs.

Against this decree the Plaintiffs preferred an appeal to the Additional District Judge. The; learned Additional District Judge considered that in order to succeed in the case it was the Plaintiffs'' duty to allege and prove that the land was occupied by the common ancestor from whom they and Sundar deceased had descended and since they had not done so he remanded the case to the trial Court with the direction that if the Plaintiffs paid Rs. 100/- as costs to the other side the trial Court should allow them to amend the plaint and after framing the necessary issue and giving the parties an opportunity of adducing evidence thereon decide the case de novo. The concluding words of the order of the Additional District Judge are as follows:

In case the above mentioned costs are not paid before or on 29th Sawan 2006, this appeal shall stand rejected as there seems no evidence on the file to prove that the common ancestor of Sundar and the Plaintiffs occupied the land.

The costs were ultimately paid by the Plaintiffs and were accepted by the defendants'' counsel under protest. The defendants are the Appellants before me.

A preliminary objection has been raised by the respondents'' counsel that the remand order made by the Additional District Judge is u/s 151, Civil P.C. and consequently no appeal, is competent. Taking into consideration the nature of the remand order I am inclined to think that the objection is well-founded and at the request of the Appellants'' counsel I treat the appeal as a revision petition.

Apart from the fact that the judgment of S. Haqiqat Singh is defective inasmuch as it does not give all the facts and does not bring out all the points upon which the parties differed the order of remand made by him cannot be allowed to stand, because it ignores the fundamental principle that when a Plaintiff comes to Court it is his duty to make all the allegations which if proved would entitle him to the decree prayed for and then to prove those allegations by evidence. As I have already observed the deceased'' was only an occupancy tenant and in order that the Plaintiffs should succeed to his occupancy rights it was necessary for them to established (i) that they were the reversioners of the deceased occupancy tenant, and (ii) that the land was occupied by their and his common ancestor. This second condition was imperative and unless it was satisfied the land would go to the landlords. for reasons best known to the Plaintiffs they Came to Court merely on the allegation that they were the reversioners of the deceased occupancy (sic) and did not even allege that the land was occupancy by the common ancestor.

I am inclined to think that instead of giving them an opportunity of proving a fact which they did not allege their plaint should have been dismissed at the very outset for the reason that they had not taken a proper plea which gave them a right to succeed to the land in dispute. Apart from this it appears to me that the issue framed by the trial Court was fairly comprehensive, be-cause it required the Plaintiff to prove that they were the reversionary heirs of the deceased and also their right to succeed to the land, and as mentioned above this they could only do by proving that the land was occupied by the common ancestor. It also appears from the judgment of the trial Court that arguments were addressed before it on the second point and since there was no evidence in support of it the trial Court found it against the Plaintiffs. Now if the Plaintiffs or their counsel were ignorant of the requirements of law and they had been taken by surprise at the time of the arguments surely it was open to them to apply to the trial Court at that stage to make the issue clearer, if they thought that it was not so already, and to allow them an opportunity to prove the occupation of the land by the common ancestor, but they did nothing of the kind.

What is significant is that even when the matter went up in appeal before the Additional District Judge no plea was taken in the memorandum of appeal that the Plaintiffs had failed to allege an important point by oversight and that permission should have been granted to them to amend the plaint. From all this it appears to me that their prayer in the Court of the Additional District Judge for amendment of the plaint was an afterthought and no notice of it should have been taken. In addition I am in entire agreement with the Appellants learned Counsel that before the Additional District Judge could remand the case and allow the Plaintiffs to amend their plaint it was his duty to go into the question of the Plaintiffs'' relationship with the deceased occupancy tenant, which the trial Court had found against the Plaintiffs, because if the decision of the trial Court on this point was correct, there was absolutely no point in subjecting the parties to further litigation by sending back the case to the trial Court.

Accordingly the revision petition is allowed, the order of the Additional/District Judge is set aside and the appeal is sent back for decision on merits in the light of above observations. Since S. Haqiqat Singh is now no longer the Additional District Judge, the case for further proceedings will go to the Court of the District Judge, Bhatinda.

The parties'' counsel have been directed to cause their respective clients to appear in that Court on 2-1-1952. Costs will abide the event.