Uttarakhand High Court
Sudrashan Lal Sah And Others vs Smt. Khasti Sah And Others on 8 September, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 519 of 2017
Sudarshan Lal Sah & Others
.... Appellants
Versus
Smt. Khasti Sah & Others
.... Respondents
Mr. Bhuwan Bhatt, Advocate for the appellants.
Mr. Rahul Consul, Advocate for respondent nos. 1 & 3
Hon'ble Servesh Kumar Gupta, J.
On behalf of respondent nos. 1 & 3, who are the real contesting defendants, Mr. Rahul Consul is taking appearance. He has presented his vakalatnama which is taken on the record. Copy has already been served.
Having heard the rival contentions on the question of admission itself, it would not be out of relevance to have a note about the history of this partition suit.
Almost more than 17 years ago, the original suit 28/2001 was filed by the same plaintiffs against the same defendants for partition, which after being protracted as much as for 13 years could be permitted to be dismissed by the learned Trial Judge in the hilly terrain of District Bageshwar where the civil litigation is very scant. The appeal no. 02/2014 was presented in the court of learned District Judge. The plaintiffs could not find any favour by the learned First Appellate Court and such civil appeal was dismissed on 28.10.2014 but with the liberty to file a fresh partition suit including certain other properties jointly owned.
Pursuant to such observation and the liberty of the learned District Judge another partition suit 03/2015 was filed against the same defendants in the court of learned Civil Judge (J.D.).
2It appears that after some time, the court of learned Civil Judge (J.D.) became vacant viz., not manned by any presiding officer hence, the suit was transferred by the learned District Judge vide his order dated 18.4.2015 to be tried by the court of learned Civil Judge (S.D.).
Such court tried the suit, which was culminated into passing of a preliminary decree on 16.10.2015. This was challenged by the defendants by way of filing the civil appeal no. 25/2015 and the learned District Judge decided the same on 10.6.2016. It was allowed and the suit was remanded back to the Trial Court with the direction to consider the certain public documents filed by the defendants which were presented by paper no. 50C 1/2 to 50C 1/11 and also the paper presented by paper no. 7C 1/2 presented by the plaintiffs. By the time, this order could be passed, the court of learned Civil Judge (J.D.) had been manned by the presiding officer. So, the file came in such court and the learned Civil Judge (J.D.) decided the matter and decreed the suit on 15.10.2016. The defendants again presented the civil appeal no. 3/2016 in the court of learned District Judge who has passed the impugned order dated 10.8.2017 holding that since the initial trial was conducted in the court of learned Civil Judge (S.D.) so, after remand pursuant to the order of District Judge dated 10.6.2016, the litigation must not have again to the court of Civil Judge (J.D.), all the same, such court has been manned by the presiding officer. So, the learned District Judge vide impugned judgment and order has remanded the matter to the court of Civil Judge (S.D.) for his finding afresh pursuant to the direction in the order dated 10.6.2016. Plaintiffs, feeling aggrieved, have come up in this second appeal.
3In my considered view, when the learned District Judge remanded the matter to be tried by the court below vide his order dated 10.6.2016, he did not set aside the whole judgment dated 16.10.2015 but, directed the court below to decide it afresh after considering certain other documents filed by both the parties.
Therefore, the proper court for adjudication for the decision afresh was only the Civil Judge (S.D.) and not the Civil Judge (J.D.) as has been held by the learned District Judge in his impugned judgment and order dated 10.8.2017.
Therefore, I do not find any infirmity in this order and this appeal is hereby dismissed at the stage of admission itself.
(Servesh Kumar Gupta, J.) 08.9.2017 Pooja