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2000 DIGILAW 325 (HP)

BILWA MANGA v. DOOMANU RAM

2000-12-20

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT M.R. Verma, J :- This is an appeal by the appellant-plaintiff (hereafter referred to as the plaintiff) against the judgment dated 10.7.2000 passed by the learned District Judge, Kangra at Dharamsala in Civil Appeal No. 94-K/XIII/99 whereby he has set aside the judgment and decree dated 21.4.1999 passed by the learned Sub Judge 1st Class (1), Kangra in Civil Suit No. 112/1993 and had remanded the case for disposal afresh after allowing the amendment of the written statement and framing the additional issues. 2. Brief facts leading to the presentation of this appeal are that Sandhya Devi, predecessor-in-interest of the plaintiff instituted a suit for declaration and permanent injunction against Malhi, the predecessor-in-interest of the respondents-defendants (hereafter referred to as the defendants). It was. Averred in, the plaint that the land comprising khasra No. 89 measuring 0-33-28 hectares is entered in the ownership of the plaintiff but shown in possession of the defendants as tenants under the mortgagee. It is further averred that the suit land was mortgaged with possession with the mortgagee but was redeemed vide judgment and decree in Civil Suit No. 158/1974 by the plaintiff and the possession was also taken over on 18.9.1992 pursuant to the orders passed by the learned Senior Sub Judge. The entry regarding taking over the possession was duly made in the rapat rojnamcha. It is, therefore, claimed that the entries in the revenue record regarding tenancy in favour of defendants are wrong and on the basis thereof, the defendants are threatening to take possession of the suit land. Hence the suit. 3. The defendants contested the suit on the preliminary objections regarding maintainability, estoppel, jurisdiction and valuation etc. On merits, it was claimed that the tenancy had been created since the time of the ancestors of the defendants who have been wrongly recorded as tenants under the mortgagee. It was further pleaded that even otherwise, the tenant of a mortgagee is a tenant for all intents and purposes, therefore, the defendants have acquired proprietary rights over the suit land from the appointed day. It is also claimed by the defendants that the deceased defendant was not a party to the civil suit nor possession could be delivered to the plaintiff as the defendant was in possession. Therefore, entries made in the rapat rojnamcha were fictitious. 4. It is also claimed by the defendants that the deceased defendant was not a party to the civil suit nor possession could be delivered to the plaintiff as the defendant was in possession. Therefore, entries made in the rapat rojnamcha were fictitious. 4. Initially the trial Court, on the pleadings of the parties, framed the following issues on 12.4.1994: 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 2. Whether the revenue entry in the name of defendant is wrong and illegal and liable to be corrected as alleged? OPD. 3. Whether the suit land was validly redeemed, if so, its effect? OPD. 4. Whether the suit is not maintainable as alleged? OPD. 5. Whether the act, conduct, acquiesance and silence of the plaintiff is a bar to the present suit? OPD. 6. Whether the plaintiff has waived his right to file the present suit as alleged? OPD. 7. Whether the civil court has no jurisdiction to entertain and decide the present suit? OPD. 8. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD. 9. Whether the suit is not within time? OPD. 10. Relief. 5. However, an application filed by the plaintiff under Order 14 Rules 1 and 5 of the Code of Civil Procedure, the trial Court on 8.7.1996, framed the following additional issues: 2(a) whether the defendant is tenant prior to mortgage and has become the owner of the suit land under HP Tenancy & Land Reforms Act, as alleged? OPD. 6. The trial court, vide its judgment dated 10.7.2000, decided issue Nos. 1 to 3 in the affirmative and issue Nos.4 to 9 were decided in the negative and the suit of the plaintiff was accordingly decreed. 7. Feeling aggrieved, the defendants preferred an appeal which was allowed by the learned District Judge by the impugned judgment and the case was remanded back for trial afresh on three grounds; viz, that the trial court had not given specific findings on issue Nos. 1 and 2, (ii) that it had not considered the effect of the revenue entries and thus, the findings were not recorded by the trial Court in its right perspective and (iii) because the application of the defendants for amendment of the written statement under Order 6 Rule 17 CPC was allowed, thereby additional issues arose for determination. 8. 1 and 2, (ii) that it had not considered the effect of the revenue entries and thus, the findings were not recorded by the trial Court in its right perspective and (iii) because the application of the defendants for amendment of the written statement under Order 6 Rule 17 CPC was allowed, thereby additional issues arose for determination. 8. It is pertinent to mention here that after allowing the amendment of the written statement, the learned District Judge proceeded to frame the following three additional issues: 2-AWhether the defendant including his predecessor in interest was a tenant prior to the creation of mortgage, is so, its effect? OPD 2B whether the defendant including his predecessor in interest was tenant under the mortgagee, in the alternative and in case issue No.2-A is not proved, whether the defendant was entitled to protect his possession as an act of good management? OPD. 2B (?) Whether the defendant has become owner by operation of tenancy law, as alleged? OPD. 9. While remanding the case, the learned District Judge further directed that the trial court shall give an opportunity to the plaintiff to file replication, if any, and in case on filing of replication, any fresh issue arises, it shall also frame the same by way of additional issues, and thereafter shall give opportunity to both the parties to lead evidence on additional issues and on conclusion of the evidence, the case shall be decided afresh by recording the findings on all the issues". Being aggrieved, the plaintiff has preferred the present appeal. 10. We have heard the learned counsel for the parties and have also gone through the records. 11. Be it stated at the very outset that the amendment of written statement raising the alternative plea that tenancy if not found to have been created by the owner prior to the creation of mortgage, it was created by the mortgagees as an act of good management to the knowledge and with the consent and approval by the mortgage as permitted by the lower appellate court, was permissible to be, so permitted within the provision of Order 6 Rule 17 of the Code of Oil Procedure for full, final and just decision of the dispute between the parties, therefore, we do not propose interfere with the permission granted to the defendants to amend the written statement. However, the additional issues framed by the learned District Judge on the basis of said amendment have to be struck off/amended for the obvious reasons that additional issues 2A and 2B (i.e. third issue numbered are similarly as second additional issue) do not arise out of the amended pleading and additional issue No. 2B is not happily worded. Therefore, additional issues Nos. 2A and 2B (wrongly numbered as such) are struck off. 12. Since the lower appellate Court has not taken on record the replication of the plaintiffs but left it to be done by the trial Court, therefore, in the absence of replication, we do not amend issue No.2B which is not happily worded and instead leave it to the concerned Court to frame additional issues as may arise after filing of the replication by the plaintiffs. 13. The impugned judgment, in our view, is unsustainable insofar it remands the case for fresh trial on all the issues and to record findings on all the issues afresh. In the ordinary course, we would have directed the lower appellate Court to take on record the replication, if any, then frame additional issues which would have arisen as a consequence of the amendment and then to proceed to record evidence, if any, to be led by the parties and then to record findings on such issues and to dispose of the appeal by itself, We, however, find that the trial Court has not given findings on issue No.2 (a) framed by it vide order dated 8.7.1996. The trial Court was legally bound to record its findings on this issue and the omission will have to be supplied by it. However, even to meet this requirement, which was not noticed by the lower appellate Court, calling for the findings of the trial Court on issue No.2 (a) is the proper course and not the remand of the suit for fresh trial. 14. For the reasons stated hereinabove, this appeal i s allowed to the extent that the impugned judgment is set aside insofar it remands the suit for fresh trial. The lower appellate Court is directed to readmit the appeal against its original number and date and then to take on record the replication, if any, which may be tiled by the plaintiffs and then to proceed to frame additional issues which may arise as a consequence of the amended pleadings. The lower appellate Court is directed to readmit the appeal against its original number and date and then to take on record the replication, if any, which may be tiled by the plaintiffs and then to proceed to frame additional issues which may arise as a consequence of the amended pleadings. The lower appellate Court will then call for the findings of the trial Court on the additional issues and issue No.2 (a) within a time limit to be prescribed by it and shall then proceed to dispose of the appeal. 15. In the facts and circumstances of the case, the parties are left to bear their own costs of this appeal. 16. The parties are directed to appear before the lower appellate Court on 11.1.2001. The records of the case be sent to it forthwith.