Remand of Case – When no finding was given by trial court on one of the preliminary issues framed then appellate court should decide that issue itself rather than remanding the case

Ms. Jaishree Thakur, J. - The present appeal is directed against the impugned judgment and decree dated 03.01.2014 passed by Addl. District Judge, SBS Nagar by which judgment and decree dated 30.04.2011 passed by the trial Court, has been set aside and the case stands remanded to the trial Court.

2. Learned counsel for the appellant herein contends that a suit was filed by the plaintiff Piara Singh (subsequently represented through his legal heirs) seeking a declaration to the effect that plaintiff Piara Singh and defendant Nos. 3 to 10 are the joint owners in possession of the suit property as fully detailed in the head note of the plaint and as a consequential relief, a decree of permanent injunction was sought restraining defendant Nos. 1 & 2 from alienating any portion of suit property and further restraining them from interfering in the undisturbed possession of the suit land held by the plaintiff.

3. In brief, the case of the plaintiff-appellant (‘the appellant’ for short) is that Karam Singh was the original owner in possession of the suit property and the plaintiff Piara Singh, defendant Nos. 3, 4 and Charan Kaur were children out of wed lock with Inder Devi. Inder Devi predeceased him. Defendant – respondents Nos. 1 & 2 claimed to succeed the estate of Karam Singh claiming to be children born out of the wedlock of Bachni who was purported to have married Karam Singh. Defendant Nos. 1 & 2 claimed that Karam Singh had executed a Will dated 17.06.1974 in their favour and on its basis they were to succeed to the estate of Karam Singh. Notice of the suit was served upon the defendants and it is only defendant Nos. 1 & 2 (sons born out of the alleged marriage between Karam Singh and Bachni) who contested the claim of the plaintiff and took the preliminary objection that the plaintiff -appellant is not in possession of the suit land. It was also alleged that plaintiff has not approached the Court with clean hands since the plaintiff had himself got mutation sanctioned regarding the land of Karam Singh in favour of the defendants on the basis of the registered Will dated 17.06.1974.

4. No replication was filed to the written statement and from the pleadings of the parties, the following issues were framed on 05.02.2003, however, additional issue No. 6-A was framed on 06.10.2009 :-

“1. Whether the plaintiff is entitled to the declaration as prayed for? OPP

2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP

3. Whether in the alternative, the plaintiff is entitled to the relief for joint possession of the suit property? OPP

4. Whether suit of the plaintiff is within time?OPP

5. Whether the plaintiff has no locus standi to file the present suit?OPD

6. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC?OPD 6-A Whether deceased Karam Singh executed last legal and valid Will dated 17.06.1974 registered on 18.06.1974 in favour of his sons Piara Singh plaintiff, Santokh Singh and Tarlok Singh defendants? OPP

7. Relief.”

5. The trial Court, on appreciation of the evidence, came to uphold the existence of the Will dated 17.06.1974 in which the defendants were given a share in the property by which share of Piara Singh comes to 31K-09Ms, share of Tarlok Singh comes to 31K-09Ms whereas the share of defendant Santokh Singh comes to 23K-09Ms. It was held that the mutation that had been sanctioned in accordance with the Will was incorrect. While disposing of the said suit the claim of the plaintiff was allowed partly holding that the plaintiff Piara Singh and defendant Tarlok Singh to be owners to the extent of 31Ks-09Ms each whereas defendant Santokh Singh was owner to the extent of 23Ks-09Ms. As far as the property mentioned in the head note of the plaint as B and C, all plaintiff, defendant Nos. 1 & 2 were held to be equal owners. It was further ordered that the mutation is to be sanctioned strictly in accordance with the Will. A decree sheet was prepared accordingly whi