HARBANS SINGH Vs. ATMA SINGH

JUDGEMENT

(1.) CHALLENGE in this appeal is to the order dated 18.2.1998 passed by the learned Additional District Judge, Ferozepur. The plaintiff had filed a suit for declaration with consequential relief of permanent injunction against the defendants. It was stated that Shri Gurdial Singh never married and died issueless. He died on 21.5.1992. The defendants illegally obtained a judgment and decree dated 14.3.1992 in the suit titled as Harbans Singh v. Gurdial Singh. The property in suit was ancestral property and no family partition had ever taken place. The plaintiffs claim to be heirs of the deceased. As such they challenged the decree and claimed ownership in the land in dispute.

(2.) THE suit was contested by the defendants, who stated that the decree dated 14.3.1992 was valid. Legal and is not liable to be set aside. It was further stated that Gurdial Singh while in sound disposing mind during his life time executed a Will dated 28.3.1984 in favour of defendant No. 2 and Lakhwinder Singh, but excluding the plaintiff from inheriting the property. On pleadings of the parties, the trial Court vide its order dated 1.2.1993 had framed the following issues :-

(3.) THE above order has been mainly assailed in appeal by the learned counsel on the ground that under the provisions of Order 41 Rule 23 read with Rule 25 of the Civil Procedure Code the Appellate Court is obliged to set aside the findings recorded by the trial Court on the existing issues as a condition precedent to an order of remand and for this purpose the learned counsel relies upon a judgment of this Court in the case of Nirbhay Singh v. Gurdev Singh, 1991(2) PLR 687. The learned counsel for the respondents contends that the impugned order is in consonance with the settled principles of law and does not call for any interference by this Court.