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2002 DIGILAW 6 (HP)

SUSHIL KUMAR v. JAGDISH RAM

2002-01-01

A.K.GOEL

body2002
JUDGMENT Arun Kumar Goel, J. :- Appellant was plaintiff in the trial court and is being referred to as such. Suit was filed by him against the respondent, who is being referred to as the plaintiff hereinafter. This was for declaration claiming himself to be the owner in possession of the land measuring 9 bighas 4 biswas together with house and Oberas (cow-sheds), as detailed in the plaint; And the revenue entries showing the defendant to be owner in possession were absolutely wrong, illegal, null and void, thus not binding on him and had no effect on plaintiffs rights. 2. Gopi Ram was admitted owner of the suit property. He died on 3.9.1987. 3. Plaintiff claimed to have performed his (Gopi Rams) last rites. Since the deceased was being looked after by the father of the plaintiff, Shakat Ram, and was aged 65 years, had gangrene, was a weak and feeble man, thus was unable to understand his well being. He was issueless. Renu Devi was his widow per plaintiff, thus his natural heir. As a result of services rendered by father of the plaintiff, i.e. Shakat Ram, Devi Ram executed will in his (plaintiffs) favour of the suit property. It was registered at Sr. No.34 on 3.12.1986 with the concerned Sub Registrar. This will was executed of his own accord, free will and volition by deceased Gopi Ram. Thus, plaintiff claimed to have become owner after the death of Gopi Ram. Plaintiff further pleaded that he is enjoying property trough his mother, Asha Devi, being himself a minor. 4. No will was executed by deceased except Ex.PW-4/A in favour of anyone else. The alleged will set up by the defendants Ex.DW-2/A was never executed by the deceased and in any event was not the outcome of free will and volition of the deceased. Plaintiff also claimed that he was not bound by decision in Civil Suit No.250/1 of 1987 filed by defendant against his father Shakat Ram. 5. Suit was contested by the defendant challenging the locus standi of the plaintiff, having no cause of action and it being barred by limitation. Estoppel as well as plaintiff having not come to court with clean hands were set up as other preliminary objections to resist the suit. 5. Suit was contested by the defendant challenging the locus standi of the plaintiff, having no cause of action and it being barred by limitation. Estoppel as well as plaintiff having not come to court with clean hands were set up as other preliminary objections to resist the suit. On merits they pleaded that decree dated 5.8.1989 in Civil Suit No.250/1 of 1987 is binding on the plaintiff as it related to the suit property. Status of Renu Devi as natural heir of deceased Gopi Ram was also controverted. While setting up will dated 31.5.1987, (Ex.DW-2/A) registered on 01.6.1987 with the concerned sub Registrar. It was further pleaded that earlier will dated 3rd December, 1986 (Ex.PW-4/A) stood revoked. Defendant also set up the plea that he is the owner in possession of the suit land and was so declared vide judgment dated 5.8.1989 supra. In application avermets made in the plaint were reiterated and those which were contrary in the written statement were denied. Trial court framed the following issues and finally dismissed the suit. 1. Whether the plaintiff is owner in possession of the land in suit as claimed? OPP 2. Whether the registered will No.34 dated 3.12.1986 executed by late Sh. Gopi Ram in respect of the property in dispute in favour of the plaintiff is final and valid will as alleged? OPP 3. Whether the decree passed in C.S. No.250/1 of 1987 decided on 5.8.1989 titled Jagdish Raj v. Shakat Ram has no effect on the rights of the plaintiff, as alleged? OPP 4. Whether the etries showing the defendant to be owner in possession are absolutely wrong, illegal, nul void and as such not binding on the plaintiff as alleged? OPP 5. Whether the plaintiff has no locus standi to file the suit? OPD 6. Whether the plaintiff has no case of action to file the suit? OPD 7. Whether the suit is barred by principle of rejudicate, as alleged? OPD 8. Whether the suit is bad for non-joinder of necessary party? OPD 9. Whether the suit is not maintainable in the present form? OPD 10. Whether the suit is barred by limitation? OPD 11. Whether the plaintiff is estopped from filing the suit by his own act, conduct deed and acqiescences? OPD 12. Whether the plaintiff has not come to the court with clean hands? OPD 13. OPD 9. Whether the suit is not maintainable in the present form? OPD 10. Whether the suit is barred by limitation? OPD 11. Whether the plaintiff is estopped from filing the suit by his own act, conduct deed and acqiescences? OPD 12. Whether the plaintiff has not come to the court with clean hands? OPD 13. Whether the will dated 31.5.1987 registered on 1.6.1987 having been executed by Shri Gopi Ram in favour of the defendant is the last and valid will, if so, its effect? OPD 14. Relief. In appeal decree of the trial court has been upheld, hence this second appeal. On 8.11.2001 this appeal was admitted on the following substantial questions of law:- 1. Whether both the courts below were of the considered opinion that the Judgment and Decree passed in Civil Suit No.250/1 of 1987 between the defendant and the father of the plaintiff does not have any effect of bearing on the present suit, on the principles of resjudicata, have not both the courts below exceeded their jurisdiction and rendered erroneous and perverse findings that the plaintiff though is not bound by the said judgment and decree is estopped to file and maintain the present suit? Have not both the courts below misunderstood and misapplied the provisions of Evidence Act enumerating the rule of estoppel? 2. Whether the Lower Appellate Court has absolutely rendered erroneous and perverse findings in holding that Ex.PW-4/A stood revoked by Exhibit DW-2/A, since Shri Shakat Ram remained under the influence of liquor and persuaded Shri Gopi Ram to revoke the will in favour of the plaintiff-Appellant? Are not such findings contrary to the facts established on the record and proved during the course of evidence.? 3. Whether both the court below have failed to take into consideration the relevant evidence to adudicate the relevant suspicious circumstance surrounding the execution of the Will Exhibit DW-2/A, which remained un-explained? 6. Learned counsel for the parties have been heard and record of the courts below has also been examined. 3. Whether both the court below have failed to take into consideration the relevant evidence to adudicate the relevant suspicious circumstance surrounding the execution of the Will Exhibit DW-2/A, which remained un-explained? 6. Learned counsel for the parties have been heard and record of the courts below has also been examined. Before starting his submissions on the questions of law, supra, learned Senior Counsel referred to the findings recorded by the trial court on issues No. 1 to 4, 11 and 13 and pointed out that though this has not been raised as a substantial question of law, still the court must look into the fact that on material issues combined findings recorded by the trial court and upheld in appeal by the first appellate court need to be reversed. According to the learned counsel as per provisions of Order 20 Rule 5, trial court was bound to give separate findings on each of such issues. Looking to the nature of issues after noting the evidence and then coming to the conclusions is no judgment in the eyes of law. 7. According to Mr. Gupta, it cannot be ascertained form the findings of these issues as to how the learned trial court has dealt with the matter. With a view to highlight this submission he referred to issue No. 11 and there being no discussion on it. 8. For this submission, he placed reliance on a Division Bench decision of this court reported in Om Prakash & Ors. v. State of Himachal Pradesh I Hi. Division Bench after placing reliance on a Supreme court decisions as well as on decisions of other High Courts came to the following conclusions:- " 12. In the present case, trial court has framed all the issues and was supposed to give separate findings on each issue, as admittedly the findings upon any one or more of them are not sufficient for the decision of the suit. By simply enumerating the evidence and law and thereafter giving conclusion whereby the case of one party is accepted and the other party is rejected, is no judgment in the eyes of law. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a judgment and decree on the points in issue or controversy, is vitiated. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a judgment and decree on the points in issue or controversy, is vitiated. It is all the more necessary, when the judgment is by the court of fact and is appealable, to avoid unnecessary delay and protracted litigation. The Supreme Court in M/s. Fomento Resorts and Hotels Ltd. v. Gustavo Ranato Da Cruz Pinto, AIR 1985 SC 736, has held in paragraph 27 as under: - "In a matter of this nature where several conventions factual and legal are urged and when there is a scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point." "13. The learned counsel for the defendants have impressed upon us that we may examine the conclusion arrived at by the district Judge by referring to the evidence on record and give findings on each issue in our capacity as first appellate Court, as we are dealing with Regular First appeal. We are unable to accept this submission as it will not be just and fair and it will deprive the losing party of a right to appeal before this Court." 9. In Roop Chand v. State of J&K & Ors. (AIR 2000 J&K) 43 it was held that a judgment should be on formal expression of opinion and it should relate to the adjudication of the parties which emerges out of pleadings. It must aim at finality as well as record reasons. When these tests are applied to the judgment of the trial court so far issues hereinbefore referred to are concerned, it does not fulfill those. 10. Faced with this situation Mr. Gautam appearing on behalf of the respondent submitted that this is not raised as a substantial question of law and in any case this court is competent to look into the matter and then should decide this appeal. He argued the matter in its entirety, despite this question having not been raised in the memo of appeal. Gautam appearing on behalf of the respondent submitted that this is not raised as a substantial question of law and in any case this court is competent to look into the matter and then should decide this appeal. He argued the matter in its entirety, despite this question having not been raised in the memo of appeal. As such case was not adjourned as required under Section 100 of the Civil Procedure Code. 11. When a reference is made to the findings recorded by the trial court in para 6,1 am satisfied that it has fallen into error ignoring not only the decision of the Supreme Court, referred to hereinabove, but also the bare provision of Order 20 Rule 5 CPC. As noted above submission of Mr. Gupta regarding issue No. 11 is well founded where under the plaintiff has been held to be estopped from filing the suit by his own act, deed, conduct and acquiescence. How and on what basis such a finding has been arrived at, particularly when the plaintiff was admittedly not a party to Civil Suit No.250/1 of 1987 supra there is no discussion. At least it cannot be spelt out from reading of the trial courts verdict. For reasons best known to the trial court it chose to treat the provisions of Order 20 Rule 5 CPC as nonest on the statute book. 12. First appellate court below ignored this vital aspect of the case while passing the impugned decree. 13. Mr. Gautam after having argued the matter with reference to the provisions of Order 20 Rule 5 CPC submitted that at least on this ground judgment of the court below calls for no interference as according to him impugned judgment is based on concurrent findings of fact arrived at by both the courts below which calls for no interference. Ordinarily this prayer would have found favour with this court, but keeping in view the circumstances noted hereinabove this plea cannot be accepted. 14. Accordingly without going into other questions, this appeal is allowed and the judgment and decree impugned is hereby set aside whereby dismissal of the suit by the trial court was upheld. Consequently the suit is remanded back to the trial court with a direction to hear it again and thereafter record findings on each issue separately. 14. Accordingly without going into other questions, this appeal is allowed and the judgment and decree impugned is hereby set aside whereby dismissal of the suit by the trial court was upheld. Consequently the suit is remanded back to the trial court with a direction to hear it again and thereafter record findings on each issue separately. Parties through their learned counsel are directed to appear before the trial court on 2nd March, 2002 when it shall fix a date for hearing keeping in view its docket and then finally dispose of the suit at the earliest and in no case later than 30th April, 2002. It will not issue any fresh notice to the parties since date is fixed by this court. Registry will ensure that record of the case is transmitted to the trial court so as to reach well before the date fixed. No costs.