HARBANS LAL,J - (1.) THIS appeal is directed against the judgment/decree dated 28.4.2008 passed by the Court of learned Additional District Judge, Tarn Taran, whereby he set aside the judgment/decree dated 6.9.1995 passed by the Court of learned Additional Senior Sub Judge, Patti and allowed the appeal preferred by Harbhajan Singh, defendant and dismissed the suit for declaration filed by Gurbachan Singh.
(2.) THE brief facts giving rise to the suit are that the plaintiff, Gurbachan Singh is the owner of the suit land which has fallen to his share in the family partition qua which memorandum dated 10.7.1989 was prepared. The defendant, brother of the plaintiff has no concern with the land in suit. On these allegations, the plaintiff filed the suit against Harbhajan Singh for declaration to the effect that he is the owner of the suit land. In answer to the notice, the defendant did not put in his appearance. He was proceeded against ex-parte. After hearing the learned counsel for the plaintiff and examining the ex parte evidence, the learned Additional Senior Sub Judge Patti, decreed the suit for declaration as prayed for vide his judgment/decree dated 6.9.1995. Feeling aggrieved therewith, the defendant went up in appeal, which was accepted and the judgment/decree dated 6.9.1995 was set aside and the suit of the plaintiff was dismissed. Being dissatisfied therewith, the plaintiff carried an appeal to this Court. Vide order dated 3.3.2008, Annexure P.1 passed by this Court in Regular Second Appeal No. 865 of 2002, the case was remanded back to the Lower Appellate Court to hear the appeal de novo and decide the same on merits after providing sufficient opportunity to the parties with a further direction that in the event, the Lower Appellate Court finds that the appellant before it is required to be granted opportunity to file written statement and to lead evidence, it will consider the same accordingly and if required remand the case to the trial Court.
(3.) IN compliance with this order dated 3.3.2008, the parties put in their appearance before the learned District Judge, Amritsar on 26.4.2008 when they were directed to appear before the Court of learned Additional District Judge, Tarn Taran at 10:00 A.M. On this date, i.e. 26.4.2008, the parties did not cause their appearance before the above-mentioned Court. Ultimately, the learned Additional District Judge, Tarn Taran proceeded to decide the appeal on 28.4.2008 on merits and vide his impugned judgment/decree dated 28.4.2008, he as noted supra, set aside the judgment/decree dated 6.9.1995 passed by the Court of learned Additional Senior Sub Judge, Patti and dismissed the suit of the plaintiff, Gurbachan Singh by allowing the appeal preferred by Harbhajan Singh defendant.;