Ram Mehar & Anr. v. Jagwati & Ors.

(1) Whether reporters oflocal paper may be allowed to see the judgment? (2) Tobereferred to thereporter ornot? (3) Whether thejudgment should bereported in the Digest ?

JUDGMENT

ARUNA SURESH. J. (Oral)

1. Appellant and Respondents are real brothers and sisters. During the pendency ofthe suit Tara Chand expired and he is being represented through his Legal Heirs. In 1912 Kalu Ram settled in Village Kushak, Hiranki. His son Pratap Singh inherited piece of land measuring 1950 sq. yds. in the abadi area and agricultural land measuring 48bigas and 18 biswas in the said village onthe death of RSA 164/2009 2009:DHC:10194 Kalu Ram. Pratap Singh, during his hfe time partitioned his entire residential property among his four sons in the following manner;-

1. Kartar Singh - 500 Sq. Yds.

2. Sardar singh - 450 Sq. Yds.,

3. Mukhtar Singh - 448 Sq. Yds.,

4. Tara Chand - 500 Sq. Yds.

2. Pratap Singh died leaving behind above said four sons and three married daughters. Respondent No.l claimed her right in the property by inheritance from her father on the basis of a Will dated 1.09.1982. She started raising construction over the vacant suit land. Apprehending threat to his possession in the suit land, Tara Chand filed the suit against the Respondents seeking decree for declaration that Will dated 1.09.1982 was null and void and Respondent.had no right, title or interest of any kind in the suit property with consequent reliefof permanent injunction for restraining the Respondents, their agents, servants, attorney, etc. from dispossessing and from interferingin their peacefulpossession of the suit land.

3. Maintainability of the suit was challenged by the Respondent in her written statement. Trial court framed a preliminary issue on 10.09.2002 to the effect, 'whether this suit is maintainable in its present form?' However, oblivious of this issue, the trial court framed issues on 2.04.2003. One of the issues framed was again "Whether the suit is not maintainable being without any cause of action? "

4. The trial court took up preliminary issue for decision being a question of law. Vide its detailed judgment and decree dated 20.09.2003, the suit of the Appellant was dismissed. Against this order, the appellants filed an appeal being RCA No.192/2003. The Appellate Court vide its judgment and decree dated 2.09.2009 set aside the judgment and decreeof the trial court dated 20.09.2003 and remanded back the suit with certain directions to the trial court.

5. Appellants have challenged the impugned judgmentof the Appellate Court in this appeal. \

6. Mr. Vipin K. Singh, learned counsel for the appellants have submitted that trial court as well as the Appellate Court went wrong in dismissing the case of the appellants on the basis of statement of Tara Chand recorded under Section 10 of Code of Civil Procedure and also that the suit was barred by period of limitation as relief of declaration was concemed. He has also submitted that by way of RSA164/2009 impugned judgment, the appellate court h!as given the licence to the Respondents to raise construction on the suit land, leaving the appellants to seek remedy at the end of the suit. Therefore, he has submitted that substantial questions of law are required to be formulated in this appeal.

7. The trial court is within its right to examine plaintiffunder Order 10 CPC on the first hearing of the suit and the mandate in this rule is mandatory in nature as the court has no power to examine the plaintiff or other party appearing in person on any other subsequent hearing. Therefore, since the trial court recorded the statement of Kalu Ram within the ambit of Order 10 Rule 2 CPC, challenge to the procedure adopted by the trial Court, upheld by the Appellate Court, to my mind, does not raise any substantial question of law to be formulated.

8. As regards question of limitation, the court is within its right to consider the limitation suo moto even ifnot pleaded. The question of maintainability of the suit which is a pure question oflaw in view of provisions contained in Order 14 (2) (b) CPC is required to be taken first and adjudicated upon, Wiich was rightly done in this case.