Nimb Singh vs Dashrath

Dr. Vineet Kothari, J.—This batch of 8 second appeals filed by the appellants Nimb Singh and others against the different defendants, viz. Dashrath Singh, Bihari, Ghanshyam, Chaman Lal, Achala, Amba Ram, Jair Ram and legal representatives of late Sh. Dheera, are being disposed of by this common judgment.

The appellants (original plaintiffs) have preferred these second appeals being aggrieved by and dissatisfied with the impugned judgment and decree dated 22nd May, 1995 passed by learned Additional District Judge, Barmer (for short, hereinafter referred to as "appellate court") in the appeals filed by the defendants/respondents against the judgment and decree dated 12th July, 1991 passed by learned Munsif, Barmer, (for short, hereinafter referred to as "trial court") in civil suit/s filed by Nimb Singh S/o. Sh. Hukam Singh etc. for claiming declaration and possession of the land in question situated in Khasra Nos. 1431 and 1585 in revenue village- Leelariya Dhora, Refugee Camp, Shivmundi Road, Barmer.

The judgment and decree of the learned trial court was in favour of plaintiffs/appellants vide the judgment dated 12.07.1991, the first appeals filed by the defendants came to be allowed by the impugned judgment of the first appellate court dated 22.05.1995. The relevant findings of the learned trial court and the first appellate court below are quoted herein below for ready reference:-

Findings of the trial court dated 12.07.1991:

Mr. Sajjan Singh, learned counsel appearing on behalf of appellants/plaintiffs during the course of arguments submitted that the same Presiding Officer had subsequently dismissed the appeals filed by other similarly situated defendants, like Nimbraj S/o. Sh. Somji, (not Nimb Singh S/o. Hukam Singh, the present appellant), Achala etc. and those appeals against the judgment of learned trial court in favour of the land-holders, came to be dismissed by the same Presiding Officer by subsequent order dated 27.08.1996 passed about one year after the present impugned judgment passed against the present appellants on 22.05.1995. He has produced the copy of that subsequently passed appellate order dated 27.08.1996 in Civil Appeal No. 11/1994- Nimbraj v. Kheem Singh & Ors.; and the findings of the said order/judgment of the said Presiding Officer in the order dated 27.08.1996 are quoted herein below for ready reference:--

Mr. Sajjan Singh, learned counsel for the appellants also brought to the notice of the Court the documents already on record of the learned court below, namely, the certified copy of the letter dated 27.02.1982 of the competent authority of the Rehabilitation Department, Barmer, and the letter dated 28.02.1982 of the said authority informing the land holders that camp of refugee temporarily set up on their land have been removed with effect from 28.02.1982 and they may re-possess their lands respectively.

The dispute pertains to re-possession by the land holders only and while one set of appeals came to be dismissed against such refugees-appellant on 27.08.1996, the impugned judgment dismissed the appeals of the present appellants/land holders on 22.05.1995 without noticing even the relevant documents and hence, the present 8 appeals have been filed against the judgment and decree dated 22.05.1995. While admitting the present appeals, in one of the appeals, viz. CSA No. 164/1995- Nimb Singh & Anr. v. Bihari, the following questions of law were framed by the learned Single Judge of this Court on 20.01.1997, which reads as under:--

"1. Whether the learned lower appellate Judge has erred in not considering and meeting with the reasonings which prevailed with the learned trial court while decreeing the suit filed by the plaintiff-appellants?

Whether the learned appellate Judge has erred in allowing the application under Order 41 Rule 27 CPC filed by the appellants seeking to produce some documents which have been created only after decision of the suit?

Whether the learned appellate Judge has failed to consider that the State was not a necessary party in the case and has erred in dismissing the suit on that ground?"

In view of aforesaid apparently conflicting orders passed by the same Court, this Court considers it expedient to set aside the impugned judgment and decree dated 22.05.1995 and remand the case back to the first appellate court of Addl. District Judge, Barmer. The documents are already on record of the first appeal by allowing the application filed by the appellants under Order 41 Rule 27 CPC and if the first appellate court considers it necessary, it may examine the respective witnesses for proving of those documents. The first appellate court itself will re-consider these appeals hereby restored to it afresh and will take into consideration these relevant documents and the other judgment passed by the same Court later-on on 27.08.1996, which are said to have become final since no appeals are stated to have been filed against the said judgment before this Court as per the information available with the learned counsel for the respective parties.

Accordingly, without answering the substantial questions of law on merits, the impugned judgment and decree dated 22.05.1995 passed by learned first appellate court of Additional District Judge, Barmer, is set aside and the first appeal(s) are restored back to the court of learned Additional District Judge, Barmer, to re-decide the same independently within a period of one year from today. No costs. A copy of this order be sent to the concerned parties forthwith.