Ram Bachan Singh v. Doma Singh — 1970 DIGILAW 68 (PAT)

Judgment B.D.Singh, J. 1. This application in revision by the sole petitioner who was defendant No. 1 in the trial court, is directed against the judgment and decree of the appellate court in Title Appeal No. 136/69 of 1962/64 setting aside those of the trial court passed in Title Suit No. 19 of 1961 and remanding the suit to the trial court for fresh decision in accordance with law and in the light of the observations made by the appellate court in its judgment. 2. In order to appreciate whether It was a fit case for remand or not, it will be necessary to set out facts in brief. Opposite party Nos. 1 to 3 instituted the said title suit in the court of Munsif, Arrah, for declaration of title and recovery of possession over half share in 4.66 acres of land fully described at the foot of the plaint irnpleading Ram Bachan Singh, the petitioner, as defendant No. 1 and petitioners wife Shyam Sundar Kuer (since dead) as defendant No. 2, Kesho Singh, minor son of petitioner as defendant No. 3 who is opposite party No. 4 placed under Deputy Registrar Guardian Advocate. Sakaldip Singh, opposite party No. 8 as defendant No. 5, Jagdish Singh opposite party No. 9 as defendant No. 6 and one Rajlila Singh as defendant No. 4 who died during the pendency of the suit. In the suit the plaintiffs inter alia sought reliefs that it be adjudicated and declared that the disputed kasht land belonged to them and they had full title to the disputed land whereas defendants 1 to 4 had no concern with the suit land and those defendants neither had any title nor possession over it. They further prayed that on adjudication the possession of the disputed land be decreed in their favour. Defendant No. 4s legal heirs, namely, Lakhan Singh, opposite party No. 5 was substituted as defendant No. 4(a), Lakhandeo Singh, opposite party No. 6 was substituted as defendant No. 4(b) and Sarba Singh opposite party No. 7 was substituted as defendant No. 4(c). It may be noted that defendant Nos. 1 to 4 were impleaded as defendants first party whereas defendants 5 and 6 were impleaded as defendants second party. In the plaint the plaintiffs gave genealogical table showing that they were sisters sons of Rajlila Singh and they claimed as such in the plaint. It may be noted that defendant Nos. 1 to 4 were impleaded as defendants first party whereas defendants 5 and 6 were impleaded as defendants second party. In the plaint the plaintiffs gave genealogical table showing that they were sisters sons of Rajlila Singh and they claimed as such in the plaint. The defendants in their written statement denied the genealogy and they set out a separate genealogical table showing that the plaintiffs are phuphera cousins of Rajlila Singh, the deceased. On the pleadings of the parties, various issues were framed by the trial court of which two are important and relevant for consideration of this application. They are: 1. Have the plaintiffs got their alleged subsisting title to the suit land? 2. Are the plaintiffs entitled to a decree for recovery of possession? The contesting parties to the suit adduced evidence in support of their respective cases. The trial court on those two issues decided against the plaintiffs holding that they failed to establish their title over the suit land and, therefore, they were not entitled to any decree for recovery of possession over the same. It further held that it was not necessary in the suit to decide as to whether the plaintiffs were sisters sons or phuphera cousins of Rajlila Singh, as the matter might have to be gone into in some other suit for the properties left behind by Rajlila Singh. It also held that similarly it was not necessary to decide anything with respect to the will (Ext. C) alleged to have been executed by Rajlila Singh in favour of defendant No. 3. 3. Aggrieved by the said judgment and decree of the trial court, the paintiffs (opposite party Nos. 1 to 3) preferred an appeal which was heard by the first Additional Subordinate Judge who after hearing the parties passed the impugned order, the relevant portion of which reads as: "...... I allow the appeal. The judgment and decree of the court below are hereby set aside and the suit is remanded to the court below for fresh decision according to law, in the light of the observations given above. The lower court will give opportunity to the parties to adduce further evidence on the point of genealogy if they so like.....". Hence this revision. 4 Mr. The lower court will give opportunity to the parties to adduce further evidence on the point of genealogy if they so like.....". Hence this revision. 4 Mr. Rash Bihari Singh, learned counsel appearing on behalf of the petitioner, assailed the impugned order and contended that the learned Subordinate Judge erred in passing the said remand order. He submitted that whether the plaintiffs are sisters sons of Rajlila Singh or phuphera cousins was beyond the scope of the suit, and those matters were not specifically raised in the pleading. In the absence of such assertions, no specific issues could have been framed by the trial court in the said suit. Therefore, remand by the appellate court for giving a finding on the basis of the question whether the plaintiffs were sisters sons of deceased Railila Singh, is not valid and not in accordance with law. In support of his contention he relied on a decision in Kanda V/s. Waghu, AIR 1950 PC 68. He drew my attention to paragraph 11 of the said judgment at page 69 which is to this effect:- - "Their Lordships agree with the learned Judges of the High Court that the District Court erred in framing the new issue and in sending the case back to the trial Court for further hearing. As already indicated the question embodied in the additional issue was not raised In the pleadings. The appellants founded their claim on the ground that the land was ancestral and it was on that ground that they challenged the right of the widow to make the gift. Not once during the proceedings in the trial Court did they suggest that even if the land was found to be non-ancestral, the widow would still be incompetent to dispose of It. In Eshenchunder Singh V/s. Shamachurn Bhutto, (1866) 11 Moo Ind App 7 at p. 20 = (6 WR 57) (PC) Lord West-bury described it as an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. In Eshenchunder Singh V/s. Shamachurn Bhutto, (1866) 11 Moo Ind App 7 at p. 20 = (6 WR 57) (PC) Lord West-bury described it as an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. The course decided upon by the learned District Judge offended against this principle and their Lordships consider that he was rightly overruled." He urged that in the instant case also the plaintiffs have not claimed title over the disputed land on the ground of inheritance from defendant No. 4 who died subsequent to the filing of their plaint. Thereafter the plaintiffs did not amend the body of the plaint to indicate that they were claiming title also on the ground of inheritance from defendant No. 4 who died subsequent to the filing of the suit. He argued that the plaintiffs simply filed the substitution application dated 5-5-61 in order to substitute the heirs of the deceased. In that also they did not claim any right on the ground of inheritance from deceased defendant No. 4. By reference to serial No. 8 of order sheet dated 6-5-61 in the said title suit, he contended that the plaintiffs were allowed to amend their plaint with regard to their substitution petition alone, i.e., to the extent of the names of the parties bringing out the heirs of deceased Rajlila Singh, defendant No. 4. He submitted that no doubt both parties in their pleadings had given two different genealogical tables; plaintiffs in order to show that they were sisters sons of deceased Rajlila Singh, whereas defendants to show that the plaintiffs were merely phuphera counsins of Rajlila Singh. According to him those were not enough materials from the trial court to have framed issues on that point. They were also not enough for the parties to have led any evidence on that point as well. In that view of the matter learned counsel submitted that the said remand order could not have been passed by the appellate court and the same is vitiated. 5. It is true that I myself have relied on the above observations made by their Lordships in AIR 1950 PC 68 (supra) in Civil Revn. In that view of the matter learned counsel submitted that the said remand order could not have been passed by the appellate court and the same is vitiated. 5. It is true that I myself have relied on the above observations made by their Lordships in AIR 1950 PC 68 (supra) in Civil Revn. No. 823 of 1969 decided on the 31-3-1970 (Pat) but in my opinion, the facts in both of those cases were different from the one in the instant case. In the Privy Council case the District Judge, as an appellate court, agreed with the Subordinate Judges finding that the land was not ancestral, but he held that the parties were aggrieved by the custom in the matter of alienation, and he sent the case back to the trial court for decision on a further issue, which he framed in the following words:- - "The land in the suit having been found to be non-ancestral, do the collaterals exclude the daughters son according to the custom of the parties and is the gift, therefore, invalid?" In that case there were no materials on the record which would have given rise to the framing of such an issue, as provided under Order 14, Rule 3 of the Code. In that view of the matter their Lordships agreed with the learned Judges of the High Court that the District Court had erred in framing the new issue and in sending the case back to the trial court for further hearing. In Civil Revn. 823 of 1969 (Pat) also the plaintiff had not raised any plea for setting aside the sale on the ground of fraud; nor he had placed any material on the record before the trial court to enable the parties to lead evidence on that point. In that view of the matter relying on the observations made in the Privy Council case, I held that the appellate court had erred in remanding the case to the trial court for further hearing. 6. In the instant case, as mentioned earlier, the plaintiffs in their plaint gave genealogical table, and they claimed to be the sisters son of Rajlila Singh, whereas the defendants in their written statement stated that the genealogical table given by the plaintiffs was not correct. 6. In the instant case, as mentioned earlier, the plaintiffs in their plaint gave genealogical table, and they claimed to be the sisters son of Rajlila Singh, whereas the defendants in their written statement stated that the genealogical table given by the plaintiffs was not correct. Therefore, the defendants in their written statement gave genealogical table and asserted that the plaintiffs were phuphera cousin of Rajlila Singh, defendant No. 4. The parties further adduced evidence on that point as to whether the plaintiffs were sisters son of Rajlila Singh or his phuphera cousins. By petition dated 5-5-61 the plaintiffs intimated to the court that defendant No. 4 was dead and they prayed that the name of Rajlila Singh, defendant No. 4, might be expunged and the plaintiffs and defendants 5 and 6 and Lakhan Singh. Lakhan-deo Singh and Sarwa Singh might be declared as heirs of defendant No. 4, and the suit be allowed to proceed. By order dated 6-5-61 the substitution as prayed was allowed. It may be recalled that the plaintiffs, In the suit, sought as one of the reliefs, an adjudication and declaration that the disputed kasht land belonged to them, and they had full title over the disputed land, whereas defendants 1 to 4 had no concern with the suit land; nor they had any title over it. One of the issues framed in the suit was. as mentioned earlier, "Have the plaintiffs got their alleged subsisting title to the suit land?" It is fairly established that a court may take notice of events which have happened since the institution of the suit, and may afford relief to the parties on the basis of the altered conditions in cases where it is shown that the original relief claimed has, by reason of subsequent changes of the circumstances, become inappropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties (vide Isari Tiwari V/s. Bindeshwari Pandey, AIR 1951 Pat 318 ). In the instant case, therefore, the court ought to have taken into consideration the fact regarding the death of defendant No. 4 which took place after the institution of the suit and the court ought to have given finding whether the plaintiffs had title to the land in the suit being sisters sons of Ra.jlila Singh. In the instant case, therefore, the court ought to have taken into consideration the fact regarding the death of defendant No. 4 which took place after the institution of the suit and the court ought to have given finding whether the plaintiffs had title to the land in the suit being sisters sons of Ra.jlila Singh. It was necessary for the trial court also to give a rinding as to what would be the effect of the claim of the plaintiffs due to the death of Rajlila Singh. The principle requiring a court to take notice of events which have happened subsequent to the Institution of the suit, is emphasised because it shortens litigation and it also enables the court to do complete justice between the parties. In the present case, the issue quoted above as framed by the court as well as the relief sought by the plaintiffs are wide enough to include findings contained in the remand order. It is equally well established that under Sec.151 of the Code an appellate court has inherent power ex debito justitiae to remand a case for retrial. Besides, in this case, as mentioned by the appellate court, the parties also adduced evidence on the point whether the plaintiffs are sisters sons of Railila Singh or his phu-phera cousins. In that view of the matter no question of prejudice to the defendant-petitioner arises due to the said remand order. Thus, the petitioner cannot contend that in the absence of specific issue he was in any way misled. In Hagubai Ammal V/s. B. Shama Rao, AIR 1956 SC 593 it was observed at p. 598 that the evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application, to a case where the parties go to the trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. But that rule has no application, to a case where the parties go to the trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. Similarly in Bhagwati Prasad V/s. Chandramaul, AIR 1966 SC 735 it was observed that if a plea was not specifically made, and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings, would not necessarily disentitle a party from relying upon it, if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. 7. In Kedar Lal Seal V/s. Hari Lal Seal, AIR 1952 SC 47 their Lordships while considering the provisions contained under Order 6, Rule 2 of the Code on the point of construction of pleadings, observed that the court would be slow to throw out a claim on a mere technicality of pleading, when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent, as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs. In the instant case, although in the plaint the plaintiffs have not claimed any specific relief for declaration that they are sisters sons of Rajlila Singh, they have given therein the genealogical table and have claimed to be the sisters sons of Rajlila Singh. In the instant case, although in the plaint the plaintiffs have not claimed any specific relief for declaration that they are sisters sons of Rajlila Singh, they have given therein the genealogical table and have claimed to be the sisters sons of Rajlila Singh. On the other hand, in the written statement, as mentioned earlier, the defendants stated that the genealogical table given by the plaintiffs was not correct and they gave another genealogical table asserting therein that the plaintiffs were phuphera cousins. Therefore, in my opinion, there was enough material on the record to give findings by the trial court as directed by the appellate court. In my view, in the instant case, there would be no prejudice caused to the petitioner. On the contrary, those findings will shorten the litigation between the parties. Judged from all aspects, I am unable to accept the contentions put forward on behalf of the petitioner, I do not find any flaw in the impugned order which has got to be upheld. 8. In the result, the impugned judgment and decree of the appellate court are upheld and the application is dismissed. In the circumstances of the case, however, there will be no order as to costs.