Man Mohan Singh Gujral, J. - (1.) NAIB Singh alias Sipedar was owner of considerable land. In respect of part of his land he made a sale in favour of Mam Raj, Singh Ram and Sunder sons of Shadi Ram by a registered sale -deed dated 4th June, 1957. By another sale -deed dated 4th July, 1957 he sold some other land to Mani Ram and Kona. About a month later he effected another sale in favour of Shadi Ram through a registered sale -deed dated 12th July, 1955. Nasib Singh's sons filed three different suits challenging these sales on the allegations that the land was ancestral, that the parties were governed by custom which prohibited the sale of land without necessity and that the sales having been made without consideration and necessity were void and of no effect against their rights. The trial of the three suits was consolidated and the following issues were framed: (1) Are the Plaintiffs sons of the vendor? (2) Are the lands in suit ancestral qua the Plaintiffs? (3) Do the Plaintiffs and the vendor follow custom in matters of alienations and if so, what that custom is? (4) Were the sales made for consideration and for legal necessity? (5) Have these claims been brought within the prescribed period of limitation? (6) Have these claims been brought in collusion with the vendor and if so to what effect? The learned trial Court found issue No. 1 in Plaintiffs favour but under issue No. 2 it was held that the land was not ancestral qua the Plaintiffs. Though it was found that the parties were governed by custom which prohibited the alienation of ancestral land without necessity it was held that the sales involved were for necessity and consideration. The remaining two issues were found in favour of the Plaintiffs but in view of the findings on issues Nos. 2 and 4 the Plaintiffs' suits were dismissed. This gave rise to three appeals which were disposed of by the impugned order of the learned Additional District Judge dated 25th November, 1970. By this order all the three appeals were accepted. The judgments and decrees were set aside and the three cases were remanded for fresh trial after allowing opportunity to the Plaintiffs to produce certain documents and to the Defendants to lead evidence in. rebuttal. It is against this judgment that the vendees have filed three separate appeals being S.A.O. Nos. 25, 26 and 29 of 1971. This judgment will dispose of all the three appeals.
(2.) THE principal argument raised on behalf of the Appellants is that even if the appellate court had found that the trial Court had erred in shutting out certain evidence which the Plaintiffs wanted to lead and there was justification for allowing that evidence, there was no occasion for sending the cases back for fresh decision on all the issues. In this respect it was pointed out that the evidence sought to be produced by the Plaintiffs only related to issue No. 2 which deals with the ancestral nature of the property. It is urged that the decision of this issue would have no effect on the findings given by the trial Court on the other issues and there was therefore no occasion for sending the cases back for a fresh decision. There appears to be considerable merit in this argument. Finding on issue No. 2 has no bearing on the decision of the other issues and even if this issue is found in favour of the Plaintiffs they would be non -suited in view of the findings on issue No. 4 unless these findings are set aside by the appellate Court. Having regard to the circumstances of the case it was more appropriate and just to direct the trial Court to retry issue No. 2, after allowing the Plaintiffs to produce additional evidence and the Defendants to rebut that evidence, even if the learned lower appellate Court had felt at the trial of issue No. 2 was not proper.
(3.) ON behalf of the Respondents a preliminary objection was raised, namely, that the appeals were time -barred. The basis of the argument is that though the appeals were filed within time but as the objections raised by the office were not removed within the time allowed by the Deputy Registrar, the appeals be held to have been filed beyond the period of limitation. Support for this argument is sought from Buta Singh v. Chand alias Chanda Singh, 1970 P.L.R. 803 wherein the following observations appear: Where an appeal was filed within limitation the Court of the District Judge wrongly as it had no pecuniary jurisdiction but on return was refilled in the High Court but the opening sheet of the form of appeal was left blank. Form was completed after about 6 weeks of refilling after objection was taken by High Court office and no explanation was given. Where an application is under Section 5 alone, as is the case here, the only assistance that can be derived from the principle behind Section 14 is that the period spent in good faith in a wrong forum may be taken to be sufficient cause for the duration of that period for not filing the appeal, but the whole of the period cannot be calculated and excluded in computing the period of limitation for filing an appeal exactly to the same extent and in the same manner as under Section 14 because that section does not directly apply. Sub -rule (1) of Rule 3 of Order 41 of the Code of Civil Procedure provides that every appeal shall be preferred in the form of a memorandum signed by the Appellant or his pleader. The form of memorandum of appeal, according to this rule, is provided in Appendix G. No. 1 and there is reference to the same in Rule 2(a) in section (a) of Chapter 1 -A of Volume v. of the Rules and Orders of this Court, which says that if a printed form is prescribed for a memorandum of appeal, the appeal shall be made on that form. Rule 5 in the same section says that the Deputy Registrar may return for amendment within a time to be fixed by him any memorandum of appeal for the reason specified in Order 41 Rule 3 of the Code of Civil Procedure and Rule 3 deals with rejection or amendment of a memorandum of appeal for non -compliance with the earlier two rules, which include Sub -rule (a) of Rule 1 of the same Order. So, according to these rules, the Deputy Registrar had the power to return the memorandum of appeal, in the case of each appeal of the Defendant, in not filing the appeal, with the form of memorandum of appeal duly and properly filed, and filing it blank. Certain information, which obviously is otherwise essential is provided for in the printed form for memorandum of appeal, and as the form was left blank the information was not available. So, this is not a case in which the appeals were returned to the Defendant on May 2, 1969, not in accordance with the rules, the fact of the matter being that the return was very much in accordance with the rules. Now the endorsements on the appeals show that the objections were first raised on May 2, 1969, and refiling was directed within a week, but it was not done until June 9, 1969, when the essential objection with regard to filling the form of memorandum of appeal had not been complied with. So they were returned again on June 11, and it was not until June 21, 1969, that this part of the objections was complied with. To the period between May 2 and June 21, 1969, by no manner of looking at it can Section 14 of the Limitation Act be applied, and for this period no sufficient cause for not filing the appeals has been shown.;