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2002 DIGILAW 1187 (PNJ)

Shamsher Singh v. Kashmira Singh

2002-11-13

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. Challenge in this petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is to the judgment dated 6.10.1995 passed by the Addl. District Judge, Ludhiana accepting the appeal of the defendant-respondents in which judgment and decree dated 9.2.1994 was impugned. In her judgment and decree dated 9.2.1994, the Addl. Senior Subordinate Judge, Ludhiana has decreed the suit in favour of the plaintiff-petitioner and against the defendant-respondents restraining defendants respondents from interfering in the peaceful possession of the plaintiff-petitioner. The defendant respondents were further restrained from raising construction over the suit land and to dispossess the plaintiff-petitioner forcibly and illegally from the same. The District Judge set aside the judgment and decree on various issues and remanded the case back. 2. Facts of the case essential for determining the issue raised in the present petition are that the plaintiff-petitioner filed civil suit No. 302 on 295.1985 for permanent injunction against defendant-respondents for restraining them from interfering in his peaceful possession and raising construction over the suit land. Further prayer was made restraining defendant-respondents from dispossessing him forcibly and illegally. The basis of permanent injunction sought by the plaintiff-petitioner was a sale certificate executed in his favour on 20.7.1965 by the Central Government. It was claimed on the basis of the afore mentioned sale certificate that the land in dispute has been purchased by him. On the threat of encroachment upon the land by the defendant-respondents by raising construction, the plaintiff petitioner filed a suit with the prayer of permanent injunction. 3. Defendant-respondents filed their separate written statement controverting the averments made in the plaint by raising various preliminary issues. On merits it was alleged that the boundaries of the suit property are not correctly described so far as southern and eastern sides are concerned. It was alleged that plaintiff-petitioners wanted to grab the land of the defendant-respondents which is adjoining to the property allegedly purchased by the plaintiff-petitioners. It was further asserted that the property was purchased by the father of defendant-respondents Babu Singh by virtue of a conveyance deed dated 28.5.1969 and since then they have been in possession of the suit property. The threat on the part of the defendant-respondents to encroach upon the property belonging to the plaintiff-petitioner was also denied. Plaintiff-petitioner filed replication and the Civil Judge framed the following three issues: "1. The threat on the part of the defendant-respondents to encroach upon the property belonging to the plaintiff-petitioner was also denied. Plaintiff-petitioner filed replication and the Civil Judge framed the following three issues: "1. Whether the plaintiff is in possession of the suit property as alleged by him? OPD. 2. If issue No. 1 is proved, whether the plaintiff is entitled to the injunction as prayed for? OPP. 3. Relief. 4. On issue No. 1 the Civil Judge concluded that defendant-respondents did not dispute the fact that plaintiff-petitioner was owner in possession of the suit land and therefore under Order 8 Rule 5 of the Code in the absence of any specific denial the averment made by the plaintiff-petitioner was to be deemed to be admitted. The entries of the suit property were also deemed to be admitted by the Civil Judge. On the basis of various other factors like statement of the witnesses and cross examination, the Civil Judge concluded that the plaintiff-petitioner was able to establish his possession on the suit land. 5. On Issue No. 2, the Civil Judge held that the plaintiff-petitioner was entitled to permanent injunction as the defendant-respondents had tried to interfere in the possession of the suit land. On the basis of the afore mentioned findings, the suit of the plaintiff-petitioner was decreed. 6. On appeal, the Addl. District Judge reached the conclusion that claim of the plaintiff-petitioner was based on the sale certificate dated 20.7.1965 and title to the property has been claimed on that basis. However, it was found by the Addl. District Judge that no issue with regard to ownership has been framed. Various other factors like tampering with the sale certificate were also taken into account for setting aside the judgment and decree dated 9.2.1994 passed by the Civil Judge, Ludhiana. The order passed by the Addl. District Judge setting aside the judgment and decree of the Civil Judge reads as under:- "No doubt the respondent No. 1 has produced the copy of his sale deed Ex.P. 1 allegedly issued in his favour by the Rehabilitation Department but the same had not even accepted by the learned trial court as it had been tampered with by making interpolations in the area recorded therein. Its perusal shows that the area sold to the respondent No. 1 was 1 K 4 M. But it had been changed by him to 1K 14M. Its perusal shows that the area sold to the respondent No. 1 was 1 K 4 M. But it had been changed by him to 1K 14M. No boundaries of the property sold to him had been mentioned in it. But in the original sale deed placed on file rough sketch of the property sold to him had been drawn with a pen and the boundaries have been mentioned, on which cutting had also been made at various places in that plan. In this original sale deed also area 1 K 4 M it had been changed to 1 K 14 M. The respondent No. 1 himself has not explained as to how and by whom these cuttings and interpolations in the area of the property sold to him had been made. He has also not produced any official of the Rehabilitation Department to prove the correctness of the original sale deed and plan drawn on it. The learned trial Court had not accepted this original sale deed produced by him. None from the office of the Rehabilitation Department who issued the original as well as copy of the sale deed referred to above to the respondent No. 1 had been produced by him to prove the exact area and the boundaries of the properly sold to him by the Govt. Since the respondent No. 1 has come on the basis of his ownership and claimed his possession over the suit property on that basis, it was essential for the learned trial court to frame issue regarding his ownership of the property in dispute. The non framing of issue on this vital point has certainly resulted in the mis-carriage of justice and as such the impugned judgment and decree of the learned trial court stands vitiated on this ground. II. The mere fact that Kehar Singh witness of the appellants has admitted the correctness of the plan Ex.P-2 attached by the respondent No. 1 with the plaint, is not enough to prove that the boundaries given by him in this plan tallies with the property sold to him through the sale deed, the carbon copy of which is Ex.P.1, but he has failed to do so. No evidence in rebuttal could be led by the appellants for want of any issue regarding ownership of the suit property by the respondent No. 1. No evidence in rebuttal could be led by the appellants for want of any issue regarding ownership of the suit property by the respondent No. 1. Therefore, much importance cannot be attached to the fact that the appellants had not led evidence to disprove the ownership of the respondent No. 1 of the disputed property. It is not the case of the respondent No. 1 that his possession over the suit property was prior to its purchase from the Central Govt. He has claimed his possession over it by virtue of the purchase. Therefore, it was essential for the learned trial Court to frame issue regarding his ownership of the suit property. Having failed to do so, has resulted in mis-carriage of justice and as such the impugned judgment and decree of the learned trial Court stands vitiated." 7. Shri Amit Ghai, learned counsel for the plaintiff-petitioner has argued that the primary dispute raised in the suit was regarding possession of the suit property and not with regard to ownership. He has further pointed out that possession of the plaintiff-petitioner has not been disputed by the defendant-respondents and, therefore, under Order 8 Rule 5 of the Code since there is no specific denial, the averments of the plaintiff-petitioner with regard to possession should be deemed to be admitted by the defendant-respondents. The Civil Judge according to the learned counsel, has rightly held so. He has further pointed out that there was no necessity to frame an issue with regard to ownership in a suit concerning permanent injunction especially when possession of the plaintiff-petitioner was admitted. Another submission made by the learned counsel is that it was for the defendant-respondents to claim an issue before the Civil Judge with regard to ownership and in the absence of any claim made to the issue of ownership, the Addl. District Judge would not be competent to direct the framing of issue of ownership. According to the learned counsel such a principle is contemplated by Order 14 Rule 5 of the Code. His last submission is that the remand could be ordered only on a specific issue and not on all the issues. Therefore, the order of the Addl. District Judge is liable to be set aside. 8. Shri Sumeet Mahajan, learned counsel for the defendant-respondents has argued that the Addl. His last submission is that the remand could be ordered only on a specific issue and not on all the issues. Therefore, the order of the Addl. District Judge is liable to be set aside. 8. Shri Sumeet Mahajan, learned counsel for the defendant-respondents has argued that the Addl. District Judge has rightly set aside the judgment and decree dated 9.2.1994 passed by the Civil Judge because boundaries of the property claimed to have been purchased by the plaintiff-petitioner described as for No. 3A measuring 1 kanal 4 marlas is not properly demarcated as no person from the Rehabilitation Department has been produced to identify the property marked as for No. 3. Learned counsel has further pointed out that there is a sale deed in favour of the father of the defendant-petitioner executed on 28.5.1969 which has been relied upon by them before the Civil Judge and the same was completely ignored by her. On the issue of conveyance deed dated 20.7.1965, the learned counsel has submitted that some forgery has been committed by the plaintiff-petitioner by showing the total land to be 1 kanal 14 marlas instead of 1 kanal 4 marlas. According to the learned counsel, the question of ownership is intimately connected with the question of possession because the basis of possession asserted by the plaintiff-petitioner is the conveyance deed dated 20.7.1965 set up by him and under the garb of injunction sought, the plaintiff-petitioner was encroaching upon the land of the defendant-respondents. 9. After hearing the learned counsel for the parties and perusing the record, I am of the considered opinion that the present petition is liable to be dismissed because the discrepancies pointed out by the learned Addl. District Judge in his order with regard to the conveyance deed, suspected interpolation, dispute with regard to boundaries, rough sketch of the property drawn with a pen on the original conveyance deed set up by the plaintiff-petitioner were sufficient to set aside the finding recorded by the Civil Judge. As the Addl. District Judge has considered the framing of an issue with regard to ownership of the property essential to decide the controversy involved, some more evidence is likely to come highlighting the boundaries, proof of ownership, proof of possession and other related issues. As the Addl. District Judge has considered the framing of an issue with regard to ownership of the property essential to decide the controversy involved, some more evidence is likely to come highlighting the boundaries, proof of ownership, proof of possession and other related issues. The assertion of the defendant-respondents that they have been in possession since 1947 and the same deed has been executed in favour of their father on 28.5.1969 it was well within the power of the Addl. District Judge to set aside those findings and remand the case to the Civil Judge for a fresh decision and determination of all the issues. The finding of the Civil Judge that possession of the plaintiff-petitioner was admitted has been found to be incorrect by the Addl. District Judge and so is the finding with regard to the ownership of the suit property. Therefore, I do not feel persuaded to take a view different than the one taken by the Addl. District Judge. There is no illegality or material irregularity in the order passed by the Addl. District Judge which may warrant interference of this Court while exercising jurisdiction under Section 115 of the Code. The revision petition is, therefore, liable to be dismissed. 10. The power of remand of the appellate court before the 1976 amendment made in the Code used to be exercised by resorting to Section 151 of the Code even if such a remand was not specifically covered by the provisions of Order 41 of the Code. Rule 23 A was inserted in Order 41 of the Code provides for remand by the appellate Court hearing appeal against the judgment and decree if two requirements are satisfied; (i) if the trial court has disposed of the civil unit otherwise than on a preliminary issue; (ii) the decree is reversed in appeal and retrial is considered necessary. In the above situation, the appellate Court could always exercise the same power of remand under Rule 23 A as given by Rule 23 to hear appeal against the order reversing the decree in appeal. This question came up for consideration before Honble the Supreme Court in the case of P. Purusotam Reddy and Anr. v. Pratap Steels Ltd. (2002)2 S.C.C. 686. This question came up for consideration before Honble the Supreme Court in the case of P. Purusotam Reddy and Anr. v. Pratap Steels Ltd. (2002)2 S.C.C. 686. On this aspect the observations of their Lordships read as under: "However, still it was a settled position of law before the 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub Rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate Court. In 1976, Rule 23 A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise then on a preliminary point, and (ii) the decree is reversed in appeal and a re-trial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23 as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanvati S. Sushila Mahendra Nanavati (A.I.R. at p. 3999), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the code. It is only in expectional cases where the court may now exercise the power of remand dehors Rules 23 and 23A. It is only in expectional cases where the court may now exercise the power of remand dehors Rules 23 and 23A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eyes of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided." 11. If the afore mentioned principles of Rule 23A are applied to the facts of the present case, it becomes evident that both the conditions have been satisfied in the present case which justify the remand of the case to the trial Court. A perusal of the judgment passed by the Civil Judge reveals that judgment and decree was passed otherwise that on a preliminary point. The second requirement has also been satisfied as is clear from the perusal of the judgment and decree of the Addl. District Judge. He has set aside the judgment and decree in appeal and has remanded the case to the trial Court for deciding it afresh after framing issue regarding the ownership of the plaintiff-petitioner in respect of the suit property. The parties have also been allowed to lead evidence on the newly framed issue. Therefore, the remand order fully satisfies the requirement of Rule 23A of Order 41 of the Code. 12. For the reasons recorded above, this petition fails and the same is dismissed. The parties through their counsel are directed to appear before the trial Court on 9.1.2002.