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2000 DIGILAW 1573 (PNJ)

Harji v. Mool Chand

2000-12-21

SWATANTER KUMAR

body2000
JUDGMENT Swatanter Kumar, J. - This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Faridabad dated 17.2.1998 vide which the learned first Appellate Court affirmed the finding of facts and the view taken in law by the learned trial Court in the judgment and decree dated 30.11.1996. 2. For determination of the legal questions arising for consideration before this Court in the present appeal reference to necessary facts and pertinent evidence is inevitable. Mool Chand and Suresh Kumar plaintiffs filed a suit for permanent, prohibitory and mandatory injunction on the averments that ancestor of the plaintiff, namely, Shri Todar was mortgagee with possession of the suit land became owner on account of prescription of the property measuring 54 feet x 48 feet situated inside abadi area of village Chandawali, Tehsil Ballabgarh, District Faridabad. The property was mortgaged in the year 1897 and was in a dilapidated condition. The mortgage deed in favour of the ancestor of the plaintiffs was created on 24.2.1897. One Heera Singh was the mortgagor. It was further averred that the defendants constructed a house towards the western side of the property in dispute. This house was constructed with an intention of encroach upon the land, of which the plaintiffs were owners in possession, over which the defendants had no right. The plaintiffs requested the defendants not to encroach upon the land or to take forcible possession thereof resulting in filing of the present suit and during the pendency of the suit the portion shown in red colour in the site plan ABCD, defendants had taken forcible possession by encroaching upon the suit land. In these circumstances suit for permanent prohibitory injunction as well as mandatory injunction requiring the defendants to hand over the vacant possession of the said portion by demolishing the construction over the said land was filed before the learned trial Court. 3. The suit was contested by the defendants. The defendants raised preliminary objections in regard to maintainability of the suit, non-joinder of the necessary parties as well as locus standi, to file the suit. However, on merits it was stated that no mortgage deed was executed in favour of the ancestor of the plaintiffs in regard to the property in dispute and even if there was some mortgage deed executed, it was a forged document. However, on merits it was stated that no mortgage deed was executed in favour of the ancestor of the plaintiffs in regard to the property in dispute and even if there was some mortgage deed executed, it was a forged document. The defendants claimed to be owners in possession of the property shown in red colour marked by alphabets ABCD in the site plan Ex. DW2/A. They claimed that they were using the said property for tethering their animals etc. The defendants took a definite plea that Panchayat of the respectables of the village was convened and the decision of the Panchayat which gave the measurements of the plot of the plaintiffs in question as 79 feet in length and 38 feet in width was accepted by the parties who signed and thumb marked the same. As such, it was stated that the suit was not maintainable. 4. The parties to the suit led evidence. The plaintiffs examined four witnesses i.e. PW1 to PW4 to prove their case. Mortgage deed was proved on record as Ex.P.1. Sat Parkash had appeared as PW2 and proved Ex.P.2, the site plan. However, PW1 had admitted Ex.D.1, the settlement arrived at between the parties before the Panchayat, and admitted his signatures thereupon at points A and B. On the other hand, the defendants has also examined equal number of witnesses and also proved on record Ex.D.1, original of which was also exhibited as Ex.DW3/A, the decision of the Panchayat duly signed by the parties, and Ex.DW2/A, the site plans in relation to the property in dispute. 5. The learned trial Court did not frame any issue despite the parties led their complete evidence in support of their respective pleaded case and each one of them contested the suit will all vigour, but without any protest in that behalf. The learned trial Court considered the oral and documentary evidence led by the parties in regard to the subject-matter of the suit and decreed the suit of the plaintiffs to a limited extent mainly relying upon Ex.D.1 or Ex.DW3/A, as it appeared to be the admitted case of the parties. The judgment and decree of the learned trial Court was assailed in appeal by the defendants which, as already noticed, was dismissed by the learned first Appellate Court vide its judgment and decree dated 17.2.1998 giving rise to the present regular second appeal. 6. The judgment and decree of the learned trial Court was assailed in appeal by the defendants which, as already noticed, was dismissed by the learned first Appellate Court vide its judgment and decree dated 17.2.1998 giving rise to the present regular second appeal. 6. The learned counsel for the appellants has strenuously argued that the judgments of the Courts below are vitiated as no issued was framed by the learned trial Court. Non-framing of issues is a patent error of jurisdiction and vitiates the judgments of the Courts below. Thus, it was further contended by the learned counsel that besides the findings being erroneous on this issue alone, the judgment should be set aside and the matter be remanded for trial afresh in accordance with law to the learned trial Court. On the other hand, learned counsel for the respondent-plaintiffs argued that the appellants never raised such a plea during trial and, therefore, cannot raise such a plea for the first time in the regular second appeal. Even otherwise the decree of the Court is primarily based upon a written agreement between the parties which was also proved in accordance with law and as such the impugned judgments suffered from no error of jurisdiction or otherwise and the appeal is liable to be dismissed. 7. In order to deal with the merits of the sole contention raised on behalf of the appellants, it will be appropriate to formulate the questions that fall for determination. The contention raised would take within its ambit the following questions for determination : (1) Whether the non-framing of issues by the learned trial Court would essentially result in vitiating the impugned judgment ? (2) Could a decree be passed by the learned trial Court on admission or on the strength of the provisions of Order 14 Rule 7 of the Code of Civil Procedure? (3) Are the appellants estopped from raising these arguments on the implied principles of waiver ? Question No. 1 : 8. Whenever and wherever from the pleadings of parties an issue of facts or law arises, the law places an obligation upon the Court to frame such an issue and to pronounce judgment thereupon. However, an issue would only arise when a material proposition of fact or law is affirmed by one party and denied by other. Whenever and wherever from the pleadings of parties an issue of facts or law arises, the law places an obligation upon the Court to frame such an issue and to pronounce judgment thereupon. However, an issue would only arise when a material proposition of fact or law is affirmed by one party and denied by other. To explain it in a simple language, dispute between the parties is the genesis to framing of an issue. Where the parties are at ad-item (ad-idem ?) in regard to the material controversy arising in the suit is there is hardly any intricate determination called for by the Court. The Court may proceed on the basis of admission or otherwise an agreement between the parties and in the event of Court proceeding on such basis there would hardly be any occasion to frame any issue. However, framing of issues is normally necessary as a matter for greater or more abundant caution. Another condition precedent to framing and adjudication of a particular issue is that the parties must claim issue and not acquiesce to its waiver. The provisions of Order 14 Rules 1 and 2 CPC place an obligation upon the Court to answer questions framed in the form of issues. The progress of the suit from the point of its institution till its conclusion is primarily controlled by the provisions of the Code of Civil Procedure which are to further the cause of justice and are normally backed up with the principles of equity. Prejudice is one of the essential ingredients of equity. A party would be obliged to show resultant prejudice suffered by it as a consequence of non-framing of a particular issue by the Court. The prejudice must be shown in regard to opportunity to lead evidence, effect thereof on the decision on material controversy in the suit and denial of reasonable opportunity in that behalf. Where the provisions of the Code of Civil Procedure provide a clear precept for the Court of control progress of the suit, the inherent powers of the Court which are founded on basic principles of equity provide bridges over the various gaps not specified in the Code. Combination of law and equity is the limited principle for trial of the suit. The maxim of acquum et bonum est lex legum is fully applicable to such matters. 9. Combination of law and equity is the limited principle for trial of the suit. The maxim of acquum et bonum est lex legum is fully applicable to such matters. 9. In the present case there were very limited controversies raised on the merits of the case. Firstly, with regard to execution of mortgage deed dated 24.2.1897. Secondly, who was in possession of the suit property, and thirdly, had the defendants encroached upon the land belonging and in possession of the plaintiffs. On all these material disputes the parties led evidence, documentary and oral, in support of their respective cases. The plaintiffs had pleaded in great detail in the plaint in regard to the execution of the mortgage deed and their possession over the piece of land measuring about 79 x 38 the defendatns in their written statement had also raised material questions by stating that mortgage deed was not executed and if it was executed, it was forged one. Mainly the defendants relied upon the decision of the Panchayat dated 12.3.1995 Ex.D.1 (originally marked as Ex.DW3/A) in their written statement. 10. Once the question of possession with ownership over a limited portion of the land in dispute was admitted between the parties, all other controversies, it did not become immaterial, at least lost all their significance before the Court. The Panchayatnama Ex.D3/A/ Ex.D.1 was an admitted document between the parties. The defendants totally relied upon it and the plaintiffs in their evidence not only admitted its execution but also proved its content and correctness. When the parties had admitted the document and the portion of which was even pleaded, it was certainly a case of admission or even a case where the parties were relying on an agreement and the Court, to my mind, no way erred or failed to exercise its jurisdiction in consonance with the principles of law in passing a decree in terms of that admission. It will be more so where the learned counsel appearing for the parties have not been able to even contend as to what other evidence they wanted to lead, even if the above three issues were framed including with regard to maintainability of the suit. It will be more so where the learned counsel appearing for the parties have not been able to even contend as to what other evidence they wanted to lead, even if the above three issues were framed including with regard to maintainability of the suit. The Court is primarily concerned with substance of the controversy rather than to involve itself into unnecessary controversies, which do not have a direct bearing on the subject-matter of the suit and are purely technical in nature. At this stage reference can be made to the judgment of the Supreme Court of India in the case of Partap Singh v. Shri Krishna Gupta and others, AIR 1956 SC 140, where the Court held as under: "Tendency of the Courts towards technicality is to be departed (deprecated ?); it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directly and a breach of them can be over-looked provided there is substantial compliance with the rules reads as a whole and provided no prejudice ensues; and when the legislature does not itself state is which judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines." 11. At this stage it will be appropriate to discuss in some elaboration the principles settled by the Honble Apex Court in regard to framing of issues and their final determination. In the case of Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 Supreme Court 884, where the party had not filed an answer to the written statement and no issue was framed with regard to a material controversy, but the parties had led complete evidence, the Honble Supreme Court repelled the contention that suit in such circumstances ought to be dismissed or remitted for fresh determination. The Court held as under : "No doubt, no issue was framed, and the one, which was framed, could have been more elaborated; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of th other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of the opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer." 12. In the case of Kunju Kesavan v. M.M. Philip and others, AIR 1964 Supreme Court 164, the Honble Apex Court again held that absence of an issue by itself would not lead to mis-trial, sufficient to vitiate a decision and held as under : "Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli, was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication." 13. Considerable significance was attributed by the Supreme Court to the circumstances that parties were in the knowledge of that a particular controversy is either covered under an issue or they intend to prove/disprove the same. Such knowledge and their effective participation in the suit would obviate the possibility of vitiating a decision pronounced by the Courts on the merits of the case. In the case of Bhagwati Prasad v. Chandramani, AIR 1966 Supreme Court 735 the Court held as under : "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, then 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. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial; and did they lead evidence about it ?" 14. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial; and did they lead evidence about it ?" 14. In view of the above settled canons of law governing the controversy in the present case and with reference to the facts of the case afore-noted, I have no hesitation in coming to the conclusion that the judgments of the Courts below are not vitiated just because issues were not framed by the Court. Resultantly, this question is answered against the appellants. Question No. 2 : 15. As already noticed Ex.DW.3/1 was a document which was the foundation of defendants case and was clearly admitted by the plaintiffs and their witnesses. PW1 plaintiff-Suresh Kumar in his cross-examination clearly admitted Ex.D.1/Ex.DW-3/A and stated that it contained in signatures and he admitted the correctness thereof and area of the plot being 79 x 38. The document which was produced and proved by the defendants was clearly admitted by the plaintiffs and the Court passed decree on the basis of the said document and even by looking the other evidence produced by the parties. The grievance, if any, could be raised only by the plaintiffs, and not by the defendants as the document was produced, proved and claimed to be the correct decision of the Panchayat by the defendants themselves. In these circumstances where the parties were in knowledge of the entire controversy and they led complete evidence with awareness in support of their respective claim, it would not be fair and proper to hold that the Court did not exercise the jurisdiction vested in it. 16. The provisions of Rules 6 and 7 of Order 14 of the Code of Civil Procedure have been enacted by the Legislature obviously with an intention to vest reasonable discretion in the Court to decide cases expeditiously and by recording findings on an issue/issues which by agreement between the parties or even otherwise on the basis of the record would lead to the final determination of the suit. The discretion to be exercised by the Court is squarely controlled by the limitations imposed in the said rules. It is a well known principle that discretion is a science of understanding to discern between falsity and truth, between right and wrong and between rights and liabilities. The discretion to be exercised by the Court is squarely controlled by the limitations imposed in the said rules. It is a well known principle that discretion is a science of understanding to discern between falsity and truth, between right and wrong and between rights and liabilities. It is not unconfined and vagrant. It is canalised within the banks that keep it from over-flowing. (Refer Law Lexicon 1990 Edition by Shri N.M. Mulchandani). The ingredients for exercising a discretion spelled out by the Court are : (a) Agreement was duly executed by the parties; (b) They have a substantial interest in the decision; (c) The same is fit to be tried and decided. 17. Then the Court could frame an issue upon enquiry and proceed to pronounce a judgment thereupon. But, in the present case, all ingredients were satisfied and the need to frame a issue did not arise because the parties were not in controversy with regard to execution and correctness of Ex.DW3/A/Ex.D-1 and both the parties had agreed to respect and abide by the said settlement. Then parties were hardly at issue in law and facts; on the contrary they persuaded the Court to pronounce a judgment on such agreement, the necessity of framing issues would not arise and even if arises, determination in the present form cannot be said to be prejudicial to any of the parties to the suit. This is the precise reason why the plaintiffs have not assailed the judgments of the Courts below. 18. The Court has substantially complied with the spirit of these two provisions particularly in view of the fact that both the parties strongly relied upon the said documents and raised their respective pleas thereupon. Determination of such a plea which would put an end to the controversy in the main suit by such implied agreement/settlement of the parties cannot be stated to be erroneous in law. 19. The defendants in paragraph No. 6 of the preliminary objections and paragraph No. 1 of the reply on merits of the written statement had pleaded the proceedings and decision of the Panchayat culminating into execution of Ex.DW3/A dated 12.3.1995. On this very basis the defendants had even taken an objection to the very maintainability of the suit. The said paragraphs read as under : "6. On this very basis the defendants had even taken an objection to the very maintainability of the suit. The said paragraphs read as under : "6. That a Panchayat was convened by Sarpanch Gram Panchayat, Chandawali to decide the dispute regarding the suit property between the plaintiffs and defendant No. 2 on 12.3.1995 and the respectable persons of the village decided the matter with the consent of plaintiffs and defendant No. 2. The plaintiffs and defendants No. 2 were satisfied from the decision of the respectable persons of the village and they put their signatures and thumb impressions on the decision in presence of respectable persons of the village and some of the respectable persons of the village also signed and thumb marked the said decision. Hence the suit is liable to be dismissed." "1. That para No. 1 of the plaint is wrong and denied. The measurements mentioned in this para of the plaint are also wrong and denied and site plan is also wrong, denied and not as per spot. The plot of plaintiffs is 79 in length and 38-6" in width as it was decided by the respectable persons of the village according to spot." 20. In the replication both these paragraphs were answered by one line that these paragraphs were denied. Once the plaintiffs filed replication and do not specifically dispute the averments made in the written statement, they would have impliedly admitted the specific averments made in the pleadings of the other party. In this regard reference can be made to the case of Waryam Singh Duggal v. Smt. Savitri Devi, 1984(1) Rent Law Reporter 428. 21. Honble Supreme Court of India in the case of Badat and Co., Bombay v. East India Trading Co., AIR 1964 Supreme Court 538, while emphasising the need of the parties to be specific about admitting or denying facts of the pleadings, held as under : "The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary." Reference can also be made to the case of Dr. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary." Reference can also be made to the case of Dr. Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 Supreme Court 292. 22. In view of the above circumstances, I am of the considered view that the learned Courts below have neither fallen in error of jurisdiction nor have offended the provisions of Rules 6 and 7 of Order 14 of the Civil Procedure Code. On the contrary, it is substantial compliance of these provisions. 23. The Code of Civil Procedure specifically stipulates a stage in the proceedings where the Court could pass a decree based on the admission of the party. Rule 6 of Order 12 of the Code vests in the Court jurisdiction to grant relief to the plaintiff in relation to his claim where it is admitted by the defendant wholly or partially. The jurisdiction can be exercised by the Court not only on the basis of an admission made in the pleadings of the parties but also in the documents on record. In the present case the defendant had made a specific pleading with regard to execution and contents of Ex.DW.3/A and Ex.D1 which itself was admitted by the plaintiffs in their evidence. It has already been discussed in detail that the parties were hardly at dispute in regard to contents and execution of Ex.DW.3-A/Ex.D1. The suit has been decreed by the Court simply on admission and on the contents of Ex.DW3-A/Ex.D1. It is a settled principle of law that wherever a document is admitted in pleadings or otherwise on record, the contents would, obviously, be deemed to have been admitted for all purposes and intents. In this regard reference can be made to the case of Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, AIR 1965 Supreme Court 364. 24. Both the parties have admitted Ex.DW3-A/Ex.D.1 and the Court passed a decree in terms thereof and granted relief to the plaintiffs less than what he had pleaded and claimed in the suit, clearly shows the mind of the Court that it passed the decree and granted relief to the plaintiffs in consonance with Ex. 24. Both the parties have admitted Ex.DW3-A/Ex.D.1 and the Court passed a decree in terms thereof and granted relief to the plaintiffs less than what he had pleaded and claimed in the suit, clearly shows the mind of the Court that it passed the decree and granted relief to the plaintiffs in consonance with Ex. DW.3-A. Granting of such relief, thus, would be squarely covered by provisions of Order 12 Rule 6 of the Code and this Court cannot find any error of jurisdiction in the said order even on this basis. Question No. 3 : 25. This question will have to be considered in light of the findings recorded by the Court in regard to the above questions, as in a way they are inter- linked factually and legally as well. The provisions of the Code do cast an obligation upon the Court to frame issues but that certainly does not absolutely absolve the parties of its duty to insist for framing of an issue, which according to them, is necessary for proper determination of the controversy in the suit. Issues are struck on the basis of the pleadings of the respective parties to the lis. In the event a particular issue is not framed by the Court, a procedural, as well as legal obligation is placed upon the parties to claim such an issue at the earlier stage of the suit if necessary, even by filing an application under Order 14 Rule 5 of the Code for framing of additional issues, once issues had been framed by the Court. 26. In the present case the parties have undertaken the entire trial without any protest or filing an application for framing of additional issue. They did not raise this ground in the memorandum of appeal before the learned first Appellate Court. Right to claim an issue can be waived by a party by its specific conduct and due acquiescence. As already noticed, no prejudice has been caused to either of the parties to the suit because Ex.DW.3-A is a document not only commonly relied upon by the parties but also admitted by them in no indefinite terms. Right to claim an issue can be waived by a party by its specific conduct and due acquiescence. As already noticed, no prejudice has been caused to either of the parties to the suit because Ex.DW.3-A is a document not only commonly relied upon by the parties but also admitted by them in no indefinite terms. The pleadings and evidence of the parties completely bringing the case within the ambit and scope of Ex.DW.3-A on the basis of which the Court has passed a decree granting partial relief to the plaintiffs and the plaintiffs have not challenged the said judgment. The conduct of the defendants clearly shows that they had waived their right to claim any issue on the merits of the suit as they had no objection to the suit being decreed in terms of Ex.DW3-A, which was the document pleaded and proved by the defendants themselves. In these circumstances, it is difficult for this Court to hold that the principle of waiver would not stare the defendants in face in raising this plea for the first time in a regular second appeal. In a regular second appeal the Court normally would not entertain a plea which is a plea of fact or even a plea of facts and law both, which ought to have been raised during the trial of the suit or before the first Appellate Court. At this stage it will be appropriate to make a reference to the judgment of this Court in the case of Piara Singh and others v. Bhupinder Kumar and another, 2000(2) PLR 688 : 2001(1) PLJ 97, where the Court held as under : "Learned counsel for the petitioners contended that in this revision the petitioners are primarily challenging the dismissal of the application filed by them before the first Appellate Court for not framing issues under Order 14 Rule 5 of the Code as prayed by applicant. In this regard the learned first Appellate Court had held as under : "It is well settled that when once the party goes to trial after knowing their case well, the non-framing of the issue and even the absence on pleadings does not prejudice their case and non-framing of the issue becomes immaterial. In this regard the learned first Appellate Court had held as under : "It is well settled that when once the party goes to trial after knowing their case well, the non-framing of the issue and even the absence on pleadings does not prejudice their case and non-framing of the issue becomes immaterial. I find support to my this view from the authorities in Nagubal v. B. Sharma Rai, AIR 1956 Supreme Court 593, Nadunari Kameswaramma v. Sampati Subba Rao, AIR 1963 Supreme Court 884, in which it was held that when once the parties go to trial knowing fully well about the case then non-framing of the issue is immaterial and in case Gurbax Singh v. Harbhajan Singh, 1990(2) SLJ 744 it was held that once the parties go to trial after knowing their case well, the absence of an issue or even of a pleading does not prejudice their cases." "Principle of waiver is applicable to framing of issues through depending on the facts and circumstances of a given case. A party when claims no issue before the Court and undertakes the entire trial on the basis of the issues framed, as a matter of course, cannot be permitted to claim framing to additional issues at the appellate stage as a matter of right. The objection with regard to non-framing of issues ought to be raised at the initial stages of the suit and in any case in the memorandum of appeal, if the party is sincerely and seriously aggrieved by non-framing of a particular issue on a fact. Even the judgment relied upon by the learned counsel for the petitioner in the case of Goverdhan Dass (supra) had taken the same view. The duty of the Court to frame issues is not so absolute that it will exclude the applicability of the principle of waiver against the party concerned. Even the judgment relied upon by the learned counsel for the petitioner in the case of Goverdhan Dass (supra) had taken the same view. The duty of the Court to frame issues is not so absolute that it will exclude the applicability of the principle of waiver against the party concerned. The Court held as under : "It is no doubt true that the provisions of sub-rule (5) of Rule 1 of Order 14, Civil Procedure Code, enjoins upon the trial Court as held in the above mentioned decision the statutory duty to read the plaint and the written statement and to frame and record the issues on which the right decision of the case appears to depend after such examination of the parties as may appear necessary for the purpose of ascertaining upon what material propositions of fact or of law the parties are at variance. But I am, however, of the opinion that the parties cannot be absolved of their responsibility and if a party like the appellants even if illiterate but assisted by a counsel does not watch its interest by having proper issues framed, then such a party should be presumed to have abandoned such issues which may arise from the pleadings of the parties but not framed by the Court." Reference can also be made to the case of Salig Ram and another v. Shiv Shankar and others, AIR 1971 P&H 437, wherein it was held as under : "We are unable to agree with this contention. Waiver is not a question of fact. It is a question of law, and in this connection reference may be made to the Privy Council decision in Beni Ram v. Kundan Lal, 1899 ILR 21 All 496 (PC). Moreover, intention or waiver has to be inferred from admitted and proved facts. Intention is a purely subjective matter and, therefore, it is the surrounding circumstances and the proved facts from which the Courts gather the intention of a party. Whether certain proved and admitted facts in law amount to waiver or not has necessarily to be held to be a question of law. Intention has to be assumed, for the purpose of waiver, from the conduct of the parties, and in this situation, the contention of Mr. Nehra must be repelled and it must be held that waiver is not a question of fact. Intention has to be assumed, for the purpose of waiver, from the conduct of the parties, and in this situation, the contention of Mr. Nehra must be repelled and it must be held that waiver is not a question of fact. The learned counsel relied on the following decisions for his contention that waiver has to be intentional, namely, Associated Hotels of India Ltd. v. Ranjit Singh, AIR 1968 S.C. 933 and Bhaiya Ram v. Mahavir Parshad, AIR 1969 Punj. 110 (FB). We have already held that in the present case waiver was deliberate and intentional on the part of the State Government. These decisions merely say that the act of waiver has to be intentional and deliberate. Therefore, these decisions do not in any manner come in conflict with the view we have taken of the matter." 27. In view of the above facts and position of law, Question No. 3 is also answered against the appellants. 28. Resultantly, this appeal is dismissed in limine, however, without any order as to costs. Appeal dismissed.