SATISH KUMAR MITTAL, J. - (1.) DEFENDANT No. 1-petitioner has filed this petition against the Order dated 3.12.2005, passed by the Additional District Judge (Ad hoc) Amritsar, whereby at the appellate stage, the plaintiff-respondent No. 1 has been permitted to withdraw the suit under Order 23 Rule 1(3) CPC with permission to file fresh suit on the same cause of action, as there was a formal defect in the suit.
(2.) IN this case, the suit for declaration and possession as owner of the land measuring 130 Kanals 14 Marlas was filed by School Beerh Baba Budha Sahib through Manager Gurdwara Beerh Baba Budha Sahib. In the suit, the plaintiff claimed ownership of the suit land on the basis of the mutation sanctioned in its favour on 27.12.1952 on the basis of an oral gift made by one S. Kundan Singh resident of Village Jagatpura. It was alleged that subsequently, in collusion with the defendants, the revenue officer changed the entries in the revenue record, for which they have no right and illegally occupied the suit land. Hence, the suit for declaration and possession was filed. The petitioner contested the said suit by filing the written statement. A specific plea was taken that the suit was not filed by the competent person and the same is not maintainable. It was stated that Beerh Baba Budha Sahib was not legally authorised to file the present suit. On the pleadings of the parties, various issues, including the following two issues, were framed : 2) Whether Beerh Baba Budha Singh is not legally authorized to file the present suit ? OPD 3) Whether the suit is not maintainable in the present form ? OPD
(3.) ON issue No. 2, the learned trial Court held that the present suit was not filed by the legally authorisd person, while observing as under : "Counsel for defendant has contended that the school is run by the Managing Committee and the present suit has not been filed by the competent person. On the other hand, learned counsel for plaintiff has contended that school property is under the control of SGPC and as such present suit has been filed by authorized person. PW1 Narinder Singh is the Manager through whom the present suit has been instituted. This witness has nowhere stated that the School is the property of Gurdwara or school is managed by Gurdwara and the plaintiff has not led any evidence to prove this fact that the suit has been filed by competent person, but contrary to this Narinder Singh appearing as PW1 had admitted in his cross-examination that there is sub-committee in existence to run school and the suit property is owned by the school. The contention of counsel for plaintiff is that vide resolution dated 28.4.1999 Narinder Pal is authorized to file the present suit, but perusal of the resolution shows that it has been mentioned that Narinder Pal Singh has been authorised to contest the cases for or against Gurdwara Buda Sahib Ji. Perusal of memo of parties of the present case it is clear that present case is not filed by the Gurdwara Baba Budha Sahib Ji rather the same has been filed by School Beer Budha Sahib and as such Narinder Pal Singh was not legally authorized to file the suit and accordingly the suit is not filed by legally authorized person. This issue is accordingly decided in favour of the defendant and against the plaintiff." ;