Shital Singh and Others vs Nanan Singh and Others

Gurusharan Sharma, J.—Plaintiffs filed suit for declaration of title against the defendants in respect of suit land, described in Schedule I to the plaint and for confirmation of possession as also for injunction.

Plaintiffs'' claim was based on the basis of a sale-deed dated 22.12.1971, executed in their favour by Mostt. Kanijia Khatoon. The suit was filed in 1981 and was dismissed on 24.11.1989, holding that plaintiffs'' sale-deed dated 22.12.1971 was not legal, genuine, valid and operative and they did not acquire any title and possession over the suit land. On the other hand, deed of gift dated 23.8.1979, executed by Mostt. Kanijia Khatoon in favour of defendants 1 and 2 was legal and valid and thereafter two sale-deeds dated 10.7.1982, executed by defendants 1 and 2 in favour of defendants 3 and 5 in respect of the suit property was also legal, valid and for consideration. The suit was also held to be bad for non-joinder of necessary parties and the plaintiffs and no cause of action to tile the suit.

Plaintiffs thereafter filed Title Appeal No. 47 of 1989, which has been allowed by the impugned judgment/order dated 13.9.1998. The trial Court''s judgment and decree was set aside and the suit was remanded to frame an issue on the question of limitation and to give one opportunity to the plaintiffs to implead those persons as parties to the suit, who were left out and thereafter to dispose of the suit on merit and in accordance with law.

Mr. Roy, a senior Counsel for the appellants submitted that question of limitation in filing the suit, as the plaintiffs'' sale-deed was of the year 1971 and the suit was filed in 1981, would have been decided at the appellate stage itself and once the plaintiffs'' prayer to implead certain persons as parties to the suit was rejected by the trial Court, it was not their prayer in the appeal that further opportunity be given to them to implead those persons and, therefore, the appeal was required to be disposed of on the basis of materials already on record on this aspect of the matter.

In such circumstances, I set aside the impugned judgment/order and direct the Court of appeal below to decide appeal on its own merit and in accordance with law, if-necessary, after hearing the parties on the question as to whether the suit, was also barred by limitation.

Parties herein undertake to appear before the Court of appeal below on 6.3.2000 on which date in their presence a firm date for proceeding with the appeal shall be fixed,

In the result, this appeal is allowed.