Decided on December 04,2006

S Seva Singh Appellant
S Surjeet Singh Respondents


- (1.) THIS Civil Second Appeal is directed against the judgement and decree dated 8 -12 -1986 passed by learned District Judge, Budgam in Civil First Appeal titled S. Harbans Singh & ors. v. S. Seva Singh & another, whereby and where -under the appeal of the respondents -defendants came to be allowed and the judgement and decree passed by the trial court viz. Munsiff Budgam dated 5 -9 -1973, so far it related to partly decreeing the suit of the plaintiff, came to be set aside.
(2.) IT is necessary to give a flask back of the case, which is on the dockets of the civil courts for last five decades, the womb of which has given birth to the instant appeal.
(3.) APPELLANTS plaintiffs had filed a civil suit before Munsiff Budgam on 21 -8 -1958 seeking decree of declaration, injunction and possession. Defendants -respondents filed written statement. Six issues came to be framed on 15 -10 -1958. There -after plaintiffs filed an application for amendment which came to be granted and accordingly they filed amended plaint on 9 -9 -1959. Defendants -respondents filed amended written statement on 6 -10 -1959. During pendency of the suit, the sole defendant died and his legal representatives came to be brought on record. Court more issues were framed on 7 -1 1 -1960, out of which two issues were treated as preliminary issues and the suit came to be dismissed on the point of limitation vide judgement and decree dated 15 -5 -1962. the plaintiff - - appellant assailed the said judgement and decree before the court of District Judge, Srinagar, which came to be allowed vide judgement and decree dated 24 -8 -1965 and the judgement and decree of the trial court came to be set aside and the case was remanded to the trial court for deciding it afresh after providing opportunities to the parties adduce evidence. The defendants; respondents assailed the judgment and decree of District Judge Srinagar, before this court and this Court vide judgement decree dated 21 -9 -1966 up -held the said judgement of the learned District Judge and directed the parties to lead evidence on the point of limitation, the onus of proof of which was on the plaintiffs -appellants. The file came up before the trial court i.e. Munsiff Budgam on 15 -1 1 -1969 and it directed the parties to lead evidence. The trial court vide order dated 1 -12 -1970 framed five more issues and directed the parties to lead evidence. The case was finaly argued and decided by the trial court vide judgement and dated 15 -09 -1973, whereby and where -under suit of the plaintiffs? came to be partly dismissed and partly decreed to the extent of 6 kanals and 2 marlas falling under survey No. 104 situated at village Shogapora, Budgam and held the plaintiff entitled to decree for recovery of possession for the said land. It appears that the plaintiff had not challenged the judgement and decree of Munsiff, Budgam dated 15 -9 -1973 and that part of the judgement had attained finality, but defendants - - respondents had challenged it to the extent of decreeing the suit in favour of the plaintiff. The learned District Judge allowed the appeal and set aside the judgement to that extent, vide the impugned judgement and decree.;

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