Himachal Pradesh High Court
Sanjeev Suri And Another vs Promila Suri on 18 July, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
FAO No. 557 of 2017
.
Decided on : 18.7.2019
Sanjeev Suri and another
...Appellants
Versus
Promila Suri
...Respondent
___________________________________________
Coram
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
________________________________________________
For the appellant: Ms.Anu Tuli, Advocate.
For the respondent(s) :Nemo
Sureshwar Thakur, Judge (oral)
The learned trial Judge after meteing credence, to, the respective depositions', rendered therebefore, of marginal witnesses, to, Ext. PW1/A, executed by deceased testator, one B.L. Suri, vis-à-
vis, the plaintiffs, had proceeded to thereafter, declined the espoused relief(s), vis-à-vis, the plaintiffs, appertaining, to, renditions of, decrees permanent prohibitory injunction, and, of, mandatory injunction. Further more, the learned trial Judge, ::: Downloaded on - 29/09/2019 00:56:21 :::HCHP 2 dismissed the defendants' counter claim, and also, had dispelled the vigor of Ext.DW2/C, propounded by the defendant(s), for, on its anvil, theirs being .
entitled, to seek a valid claim, vis-à-vis, the suit premises. The afore assigned reason, was, hinged upon the relevant discharging evidence, vis-à-vis, the valid and due execution of Ext.DW2/C, remaining un-adduced, despite, several opportunities, being granted to the defendant.
2. However, in an appeal preferred therefrom, by the aggrieved defendants, the learned first appellate Court, without proceeding, to, determine the tenacities of the afore findings, remanded the case, to, the learned trial Judge, with a direction to it, to bring on record, through an appropriate amendment, all the second class heirs, of the afore, one B.L. Suri.
The afore order, is grossly perverse and absurd, (i) as the learned first appellate Court, has proceeded to, make it, without touching the merits of the verdict recorded by the learned trial Judge, vis-à-vis, the latter proceeding, to accept the evidence adduced, 2 ::: Downloaded on - 29/09/2019 00:56:21 :::HCHP 3 qua the, valid, and, due execution of Ext. PW1/A, and also, without proceeding to reverse the findings, recorded by the learned trial Judge, hence declining .
to mete deference to Ext. DW2/C, as propounded by the defendants, (i) thereupon, obviously, in case, the initial findings, were reversed or the secondary findings, with respect, to, validity of Ext. DW2/C, were affirmed, thereupon also, the suit premises, would be validly, succeeded either by the plaintiffs, or the defendants, as the case may be. Obviously, hence there was no occasion, for succession, to the estate of deceased B.L. Suri, being governed, by the provisions, existing in the Hindu Succession Act. Rather succession to the estate of deceased B.L. Suri, would be governed, by the provisions of Hindu Succession Act, only when the learned first appellate, Court, had dispelled the vigor, of both, the aforestated Wills, as propounded, respectively by the plaintiff, and, by the defendants. However, the afore exercise rather has remained neither endeavored nor obviously, any decision stood recorded thereon, rather the learned 3 ::: Downloaded on - 29/09/2019 00:56:21 :::HCHP 4 first appellate Court, has, made an erroneous order, of, remand.
3. Consequently, the verdict of remand, .
pronounced by the learned first appellate Court, hence, deserves interference. The appeal succeeds, and, the impugned verdict of the learned first appellate Court, is, quashed and set aside. The learned first appellate Court, is, directed to re-
register, the apt civil appeal RBT No. 18-s/13 of 2015, and thereafter, is directed, to, within four months, hereafter, and, in accordance with law, to, record a fresh decision thereon. All pending application(s), if any, are also disposed of. No costs.
(Sureshwar Thakur) 18.7.2019 Judge Kalpana 4 ::: Downloaded on - 29/09/2019 00:56:21 :::HCHP