- (1.) JUDGEMENT :- This second appeal under S.100 of the Civil P.C., is directed against the judgement and decree dated 21st May, 1982, passed by the learned Civil Judge, Ajmer in Civil Appeal No. 242 of 1976 (12 of 1977), affirming the judgement and decree dt. 17th Nov., 1976, passed by the learned Addl. Munsiff, Ajmer City, in Civil Suit No. 60 of 1969 (6 of 1973).
(2.) Briefly stated the facts of the case are that the plaintiff filed a civil suit for injunction restraining the defendant from making any construction over the land or from interfering in any manner in his possession over the disputed land. The case of the plaintiff is that he is the owner of the disputed plot and he has possession over it. The defendant contested the suit, denying that the disputed plot belongs to the plaintiff. He contended that the disputed land is a part of his property and the western boundary of his property extends to the disputed land. The trial Court after appreciating the evidence dismissed the suit of the plaintiff vide judgement and decree dt. 12th Nov., 1973. The trial Court gave a finding that the plaintiff failed to prove his title and possession over the disputed land.
(3.) Aggrieved by the said judgement and decree, the plaintiff preferred an appeal before the learned District Judge, Ajmer. Before the appellate Court, an application for amendment was submitted by the plaintiff under O.6, R.17 C.P.C. to amend the prayer clause and to mention about the prayer for possession in that clause. The learned appellate Court allowed the amendment in the prayer clause and remanded the case to the trial Court for further proceedings. In the trial Court, amended plaint was filed after four months. The defendant submitted an amended written statement. The defendant-appellant raised an objection that the amended plaint was not filed within the prescribed time and, thus, the suit was liable to be dismissed. An issue to this effect along with other issues was framed, which is as follows :- "Whether the amendment granted by the appellate Court is to be rejected under Section (Order?) VI, R.18 of the Civil P.C. ? No further evidence was adduced after the remand of the case. The trial Court decided all the issues afresh and decreed the suit vide judgement and decree dt. 17th Nov., 1976. An appeal was preferred against it. The appellate Court overruled all the objections and dismissed the appeal vide judgement dt. 21st May, 1982. Aggrieved by the judgement and decree dt. 21st May, 1982 passed by the learned Civil Judge, Ajmer, this second appeal has been preferred. While admitting the case, the following substantial question of law was framed :- "Whether the original decree of the trial Court dt. Nov., 12, 1973, dismissing the plaintiff's suit is still intact by reason of the failure of the lower appellate Court to pass any order on July 9, 1975, when it remanded the case to the trial Court, to set aside the said decree ?";