LEKHU Vs. MEHAR SINGH

JUDGEMENT

(1.) This is unsuccessful plaintiffs' second appeal against the judgments of the Court below.

(2.) Briefly put, plaintiffs claimed the property in dispute being the close heir of the deceased i.e. son and daughters of deceased husband's sister. It was stated that the land in dispute belonged to one Badama, who was their maternal uncle. This property was inherited by Hira who died in February, 1958, i.e. after the enforcement of the Hindu Succession Act. Since the plaintiffs are the husband sister's son and daughter of Hira, they are entitled to succeed to the property and the mutation sanctioned by the authorities in favour of the defendants is not binding upon them. The defendants put in appearance and controverted the various averments made in the plaint. The defendants specifically denied the relationship of the plaintiffs with Hira or her husband Badama. They also denied that Smt. Mansi, the alleged mother of the plaintiffs, was at all the daughter of Ganaga Ram or sister of Badama. The defendants, however, claimed themselves to be the near collaterals of the deceased. On the pleadings of the parties, the following issues were framed:

(3.) The trial Court decided issue No.1 against the plaintiffs. Issue No.2 was decided against the plaintiffs. Issue No.3 was decided in favour of the defendants. Resultantly, the suit of the plaintiffs was dismissed. Before the lower appellate Court, the learned Counsel appearing for the appellants primarily attacked the judgment and decree of the trial Court, on the ground that once the Court had dismissed the suit under Section 35-B of the C.P.C., the Court could not dismiss the suit on merit as well. The precise submission was that suit could not have been dismissed twice and this irregularity is quite apparent on record and the judgment and decree of the trial Court are liable to be reversed on this short ground alone. The lower appellate court examined this matter and came to the conclusion that this irregularity, in fact, had no bearing upon the matter in controversy since the trial Court vide the impugned judgment and decree, however, disposed of the same on merits as well. The lower appellate Court, however observed that the Counsel appearing for the appellant did not address the Court on the merit of the case. Even then the Court with a view to do justice examined the matter i.e. evidence of the plaintiffs with respect to their relationship.