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Sunday, July 21, 2013

Mistake on the face of record = The Trial Court had dismissed the suit by invoking its powers under Section 35-B of the Code of Civil Procedure, 1908 ('the Code' for short) for non-payment of costs. Being aggrieved by the said order of the learned Trial Judge, the plaintiffs/appellants had filed the Civil Revision Petition Nos.6838 and 6840 of 2010. While disposing of the the aforesaid Civil Revision Petitions, the High Court has observed that the suit filed by the plaintiffs/appellants is not maintainable, based on the claim made that they are the owners of the property on the basis of adverse possession.= The Trial Court had dismissed the suit by invoking its powers under Section 35-B of the Code of Civil Procedure, 1908 ('the Code' for short) for non-payment of costs. Being aggrieved by the said order of the learned Trial Judge, the plaintiffs/appellants had filed the Civil Revision Petition Nos.6838 and 6840 of 2010. While disposing of the the aforesaid Civil Revision Petitions, the High Court has observed that the suit filed by the plaintiffs/appellants is not maintainable, based on the claim made that they are the owners of the property on the basis of adverse possession. In our view, while deciding the Civil Revision Petitions, the High Court should have concentrated primarily on the ground on which the trial Court had dismissed the suit of the plaintiffs/appellants. There was no reason for the High Court to have observed in its order that the suit itself was not maintainable before the Trial Court. In that view of the matter, we cannot sustain the impugned judgments and orders passed by the High Court. Therefore, while disposing of these appeals, we remand the matters to the High Court for fresh disposal in accordance with law, keeping in view the aforesaid observations made by us in the order. No costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40550
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 5339-5340  OF 2013
            (@ SPECIAL LEAVE PETITION (C)NOS.25656-25657 OF 2012)

JHAU LAL & ANR.                              ... APPELLANTS

                 VERSUS

MOHAN LAL & ORS.                             ... RESPONDENTS

                                  O R D E R

1.          Leave granted.

2.          These appeals are directed  against  the  judgments  and  orders
passed by the High Court of Punjab and Haryana in  Civil  Revision  Petition
(O & M) Nos.6838 and 6840  of  2010,  dated  29.05.2012.   By  the  impugned
judgments and orders, the High Court has  given  a  finding  that  the  suit
filed by the plaintiffs/appellants for declaration of  permanent  injunction
claiming ownership of the  property  on  the  basis  of  adverse  possession
itself is not maintainable.

3.          The Trial Court had dismissed the suit by  invoking  its  powers
under Section 35-B of the Code of Civil  Procedure,  1908  ('the  Code'  for short) for non-payment of costs.  
Being aggrieved by the said order  of  the learned Trial Judge, the plaintiffs/appellants had filed the Civil  Revision Petition Nos.6838 and 6840 of 2010. 
While disposing  of  the  the  aforesaid Civil Revision Petitions, the High Court has observed that  the  suit  filed by the plaintiffs/appellants is not maintainable, based on  the  claim  made that  they  are  the  owners  of  the  property  on  the  basis  of  adverse
possession.

                                    : 2 :

4.          In our view, while deciding the Civil  Revision  Petitions, 
 the
High Court should have concentrated primarily on the  ground  on which  the trial Court had dismissed the suit of the plaintiffs/appellants.  
There  was
no reason for the High Court to have observed in its  order  that  the  suit itself was not maintainable before the Trial Court.  
In  that  view  of  the
matter, we cannot sustain the impugned judgments and orders  passed  by  the High Court.  
Therefore, while disposing of  these  appeals,  we  remand  the
matters to the High  Court  for  fresh  disposal  in  accordance  with  law, keeping in view the aforesaid observations made  by  us  in  the  order. 
 No
costs.

            Ordered accordingly.






                                                       ...................J.
                                                                (H.L. DATTU)



                                                       ...................J.
                                                               (DIPAK MISRA)

NEW DELHI;
JULY 08, 2013

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