JARNAIL SINGH, ETC. Vs. CHATAR SINGH, ETC.
HIGH COURT OF PUNJAB AND HARYANA
Jarnail Singh, Etc.
Chatar Singh, Etc.
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Harnam Singh, J. -
(1.) ON 1 -4 -1942, Jemadar Chatar Singh instituted the suit out of which these proceedings have arisen for a declaration that Sadhu Singh was not the adopted son of Bogha Singh and in case the factum of adoption of Sadhu Singh by Bogha Singh was established then the adoption was contrary to the custom and not binding on the reversionary interests of the Plaintiff after the death of Bogha Singh, Defendant 2.
(2.) AT the time of the institution of the suit Sadhu Singh was serving under special conditions within the meaning of Section 3, Indian Soldiers (Litigation) Act, 1925, hereinafter referred to as the Act. On 5 -11 -1947, Chatar Singh made an application in the trial Court for bringing on record the three sons of Sadhu Singh as his legal representatives on the ground that Sadhu Singh had died in the year 1942. That petition was dismissed on 30 -3 -1948, on the finding that the death of Sadhu Singh was not proved and that Sadhu Singh must be deemed to be alive. A similar, application was then made by Jarnail Singh on 28 -10 -1948, but that application was also dismissed on 5 -2 -1949. In the order passed on 5 -2 -1949, Sardar Jasmer Singh, Subordinate Judge, 1st Class, Jagraon, said:
The statement of the learned Counsel for the applicants was recorded on the back of this application on the same day. According to that statement the applicants do not contend that Sadhu Singh is dead. All they say is that his whereabouts are not known and it cannot be said whether he is alive or dead. They do not accept the position taken up by the authorities as correct. In face of this statement the application in question is rendered meaningless. If the applicants themselves come forward with a plea that Sadhu Singh is dead or should be presumed to have died in the peculiar circumstances of the case, then this matter can be inquired into by the Court.
Now, the present proceedings have arisen from the application of Jarnail Singh and Harnail Singh, sons of Sadhu Singh, alleging that now the Army authorities have declared that all prisoners of war should be treated as dead with effect from 1 -11 -1948, and that being so, the sons of Sadhu Singh have to be brought on the record of the case because they were necessary parties to the suit after the death of Sadhu Singh and furthermore they were in possession of the suit property.
Chatar Singh Plaintiff resisted the application inter alia on the ground that the orders passed on 30 -3 -1948, and on 5 -2 -1949, operate as res judicata. Then, it was pointed out in the written statement by Chatar Singh Plaintiff that the order of the Army authorities, if any, has no binding force in proceedings pending before the Court. On the pleadings of the parties, the following issues were framed:
1. Is Sadhu Singh to be presumed to have died.
2. What is the effect of the previous orders dated 30 -3 -1948 and 5 -2 -1949, on the present application?
(3.) THE trial Court finding issues 1 and 2 against the applicants dismissed the application with costs on 14 -4 -1949.;
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