Hari Kishan Lal vs Iqbal Singh (Deceased) Through ...
2011 Latest Caselaw 2905 Del

Citation : 2011 Latest Caselaw 2905 Del
Judgement Date : 30 May, 2011

Delhi High Court

Hari Kishan Lal vs Iqbal Singh (Deceased) Through ... on 30 May, 2011

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Judgment:       30.05.2011

+     RSA No.66/2009 & CM Nos.8229/2011 & 7360/2009

HARI KISHAN LAL
                                               ...........Appellant
                  Through:    Mr. Deepak Khosla and Mr. B.P.
                              Gupta, Advocates.

                  Versus

IQBAL SINGH (DECEASED) THROUGH LEGAL HEIRS
                                   ..........Respondent

                  Through:    Mr. Sanjeev Sachdeva and
                              Mr. Preet Pal Singh, Advocates.
      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                 Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

04.05.2009 which has reversed the finding of the trial Judge.

The trial Judge had dismissed the suit of the plaintiff. The

impugned judgment had reversed it; suit of the plaintiff stood

decreed.

2 This is a second appeal. It has been admitted and on

12.04.2010, the following substantial question of law was

formulated:-

"Whether the findings of the Appellate Court perverse in law and on facts?"

3 Thereafter an application under Order XLI Rule 27 of the

Code of the Civil Procedure (hereinafter referred to as the

„Code‟) had been preferred by the respondent. He sought

permission of the Court to place on record a document termed

as Annexure „A‟ which was the mutation qua the disputed

property recorded on 14.05.1984. It was submitted that this

document has a material bearing on the facts of the case.

4 In reply the counsel for the appellant had disputed the

contents of the said document; he had also filed an additional

affidavit to place on record sale deed dated 27.10.1937 qua the

said suit property. Contention was that Umrao Singh had

executed this sale deed in favour of Pandit Pran Nath Sarwaria

s/o Pandit Shri Ram Sarwaria and this document has a relevant

bearing on the facts of the instant case.

5 After some arguments, it has been agreed upon between

the parties that the documents of both the respective parties be

considered by the fact finding court i.e. first appellate court.

Both the parties are agreeable that the matter be remanded

back to the District & Sessions Judge for the said purpose. This

is a fit case for remand. The first appellate court shall answer

the following issue:-

1. Whether the sale of the property i.e. measuring 780 square yards in property bearing No. 50 to 53 in Abadi of Vishwas Nagar, Delhi comprised in khasra Nos. 807 & 806 situated in revenue estate of Mauja Chandawali alias Shahdar, Delhi was effected on 21.10.1937 and if so its effect.

6 A Bench of this Court in 2008 (154) DLT 80 Jammu and

Kashmir Bank Ltd. Vs. Digvijay Cement had noted that where

additional evidence is taken on record, the appellate court must

not determine the issue in appeal; the correct approach in such

a case is to frame an issue and then remit the matter back to the

trial court for a finding on it; this had been appreciated by the

Apex Court in (1964) 1 SCR 316 Banarsi Das Vs. Kanshi Ram.

7 Both the parties are accordingly permitted to lead their

respective evidence; the court shall thereafter return a finding

on it.

8 Appeal is disposed of in the above terms. Parties are

directed to appear before the District Judge, Karkardooma