JUDGEMENT
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(1.)This Regular Second Appeal is directed against judgments and
decrees dated 13.8.2008 and 10.4.2009 passed respectively by the Additional
Civil Judge (Senior Division), Panipat (hereinafter described as `the trial
Court') and the Additional District Judge, Panipat (referred to hereinafter as
`the first appellate Court') whereby the suit and the appeal of the plaintiff-
appellant have been dismissed.
(2.)The appellant had filed a suit for declaration pleading that he and respondent
no.2 were entitled to the land belonging to Radhey Shyam, who was their real
brother, in equal shares. The appellant and respondent no.2 are also brothers.
It was pleaded that Radhey Shyam, who was in cultivating possession of the suit
land went missing with effect from 5.8.1997 and a Daily Dairy Report was duly
got recorded by the appellant in that regard and since he was not heard of for
the last seven years, he should be presumed to be dead and his property should
be declared to have devolved upon the appellant and respondent no.2 in equal
shares. Upon notice, respondent no.2 appeared and resisted the claim of the
appellant. He raised preliminary objections of maintainability, locus standi
and cause of action etc. It was averred that Radhey Shyam was not missing and
he was alive. It was further averred that after the day of disappearance,
Radhey Shyam had come back in the village and took Rs.24,000/- as batai from
him. He pleaded that Radhey Shyam had gone to Haridwar and is living as hermit.
(3.)On the pleadings of the parties, the following issues were framed:-
1. Whether the plaintiff is entitled for the relief of declaration,
as prayed for?OPP
2. Whether the suit of plaintiff is not maintainable in the present
form?OPD
3. Whether the plaintiff has no locus standi to file the present
suit?OPD
4.Whether the plaintiff has no cause of action to file the present
suit?OPD
5. Relief.
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