The importance of challenging irregularly decided orders affecting the case and the power of the appellate court to consider such orders, as well as the crucial nature of findings on key issues in determining the right to claim property as legal heirs.

1. Appellants and respondent claim to be the legal heirs of one Mapan Paldan. Mapan Paldan had married two real sisters namely Diskit Yongdole and Chunzin. The respondent is the daughter of first wife namely Yongdole whereas appellants are children from second wife namely Chumzin. The dispute relates to the land under Khewat No.54 measuring 42 kanals 5 marlas and Khasra No. 2183 measuring 6 kanals situated at Chemday Tehsil Leh, which was owned by Mapam Paldan. The appellants claim to be the joint owner in possession of the property left by said Mapam Paldan with the respondent. On being denied the right to own and possess the aforementioned property, they filed a suit for partition by metes and bounds before the Sub Judge, Leh.

2. The claim came to be resisted by the respondent on the ground that the property having been mutated in the name of respondent, the appellants were not entitled to any share and secondly they had no right to claim the property as they were not legitimate heirs of Mapam Paldan . It was however, contended that they were given small share by oral sale of some portion of the property. During the trial, the appellants filed an application for seeking permission to place two documents namely Permanent Resident Certificate and Voter List on record to prove the paternity of Appellant No. 1 and the deceased mother of Appellant No. 2 with Mapam Paldan. The trial court dismissed the application on 6-9-2000 and dismissed the suit also on 25-11-2000.

3. An appeal was preferred against the aforementioned order before Dis- trict Judge, Leh, who vide his order dated 25-6-2003 dismissed the appeal. It is under these circumstances, the present appeal has been preferred. The substan- tial questions of law have been framed by the appellants. The said substantial questions of law formulated by the appellants were adopted as substantial questions of law by this court vide order dated 15-4-2004.

4. I have heard the learned counsel for the parties.

5. Both the courts below decided the case of the appellants on the following grounds:

a) That the appellants had failed to prove their paternity with Mapam Paldans and as such were not entitled to any property as co-sharers.

b) That by virtue of oral sale deed, some property was purchased by the appellants from the respondent which stands reflected in the revenue record as EXPA & EXPC. It cannot be said that they were co-sharers with respondent.

c) That the said suit was barred by limitation.

d) That the plea of the appellants seeking permission to place on record two documents i.e. voter list and permanent resident certificate having been rejected by the trial court, could not be questioned by them in the appeal once they have failed to file the revision against the said order.

6. The appellants had during the course of trial before the court below, filed an application seeking permission to place on record the voter list and the permanent resident certificate. The said plea of the appellants was rejected by the trial court on 6-6-2002. Admittedly, no revision was filed questioning the said order. The appellate court while taking note of this fact, has admitted that proof of these two documents would have bearing on the out come of the case but since the appellants have failed to question this order, it has assumed finality. While examining the merits of this finding, it is important to refer section 105 of the CPC, the same is quoted hereinbelow:

105. Other orders

1) Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objections in the memorandum of appeal.

2) Notwithstanding anything contained in sub section(1),where any party aggrieved by an order of remand from which an appeal lies does not appeal there from, he shall thereafter be pr

Click Here to Read the rest of this document