Alok Singh, J. (Oral).:- The defendants No.1 and 3 preferred present second appeal assailing the judgment and decree dated 19.9.1980 passed by the first Appellate Court/Addl. District Judge, Karnal, thereby allowing the appeal filed by the plaintiffs and decreeing the suit of the plaintiffs for declaration to the effect that the plaintiffs are the owners of the land in dispute, being the only heirs of Mokh Ram (deceased) together with decree for possession of the land in question against the defendants.

2. The brief facts of the present case are that plaintiffs claiming to be legal heirs of Mokh Ram (deceased) filed suit for declaration, injunction and alternatively for possession against the defendants inter-alia alleging that Mokh Ram died issueless and Krishna was his first cousin. Hence, being sons of Krishna they have inherited the estate of Mokh Ram (deceased).

3. The claim of the plaintiffs are that defendant No.1 Smt. Phuli got the mutation done illegally over the estate of Mokh Ram (deceased) with the collusion of other defendants.

4. Defendants No.1 and 3 contested the suit. The main defense taken was that Smt. Phuli was wife of Mokh Ram (deceased); Smt. Phuli and Mokh Ram (deceased) entered into karewa type of marriage prevailing in the Jat community and being widow of Mokh Ram (deceased) Smt. Phuli was the only legal heir; Smt. Phuli had leased out the property in dispute in favour of other defendants i.e. defendants No.2 and 3.

5. Learned trial Court dismissed the suit of the plaintiffs having observed that remarriage of Smt. Phuli with Mokh Ram (deceased) is proved and being widow of Mokh Ram (deceased), Smt. Phuli is entitled to remain in possession.

6. However, learned first Appellate Court reversed the judgment of the learned trial Court and decreed the suit for declaration and possession against the defendants. Learned first Appellate Court observed that alleged karewa marriage is not proved on the record; Smt. Phuli herself did not make any statement on oath about the alleged karewa; both the attesting witnesses of alleged karewa were not produced as witnesses to prove the alleged karewa; Datu and Sardara who were allegedly present at the time of alleged karewa marriage were also not produced as witnesses although they were alived at that particular time; alleged karewa marriage was not performed in the village and was alleged to be performed in the Court. Learned first Appellate Court recorded clear cut finding of fact that factum of alleged marriage of Smt. Phuli with Mokh Ram (deceased) is not proved. However, learned first Appellate Court observed that defendant No.3 is in possession of the property, hence, granted decree for possession.

7. This Court vide judgment dated 18.9.2001 dismissed the second appeal. However, judgment of this Court dated 18.9.2001 was challenged before the Hon’ble Apex Court. The Hon’ble Apex Court vide judgment dated 26.2.2009 allowed the Civil Appeal No.8581 of 2001 and has observed as under:-

“Having heard learned Counsel for the parties and having gone through the judgment of the High Court whereby and where under R.S.A. No.2535/1980 filed by Tek Chand Nambardar and deceased Smt. Phulli, who is stated to have died in the year 1987, was dismissed without formulating any substantial question of law and without giving reasons whatsoever. The judgment of the High Court reads thus:

Learned Counsel for the plaintiffrespondents has made a statement that the appellant-Phulli died somewhere in the year 1987 and on account of the non-bringing on record her legal representatives, the appeal has abated. Learned Counsel for the appellants is not in a position to rebut the above statement. However, since this appeal is being dismissed on merits, no further order on this aspect is required.

In our view, the order of the dismissal of the R.S.A., in a slip shod manner without framing the substantial question of law, if any, and by unreasoned judgment, cannot be legally sustained.

In