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2008 DIGILAW 336 (JK)

Shiv Dei v. Girdhari Lal

2008-09-08

SUNIL HALI

body2008
1. The parties are litigating for the last more than three decades over a land situated at village Matta Kishtwar. The dispute in the present case relates to the land comprised in survey No.1756 measuring 10 marlas situated in village Matta, Kishtwar, which the appellants claim to have purchased in exchange with one Naib Chand. The appellants-plaintiffs alleged that in pursuance of the Exchange Deed, the possession of the land was handed over to them, but they were dispossessed by the defendants-respondents from the said piece of land somewhere in the year 1973. Resultantly, the effect of this was that a civil suit came to be filed before the learned Sub Judge, Kishtwar. 2. The claim of the appellants is that by virtue of an Exchange Deed they acquired the ownership of ten marlas of land comprised in survey No. 1756 situated in village Matta, Kishtwar. Initially the suit was for permanent prohibitory injunction, but in view of the intervening circumstances, it was amended and claim for possession was made. The trial court after framing issues, allowed the suit of the plaintiffs-appellants. The finding of the trial court was based upon the Exchange Deed, executed by Naib Chand with the appellants-plaintiffs for ten marlas of land. The appellants-plaintiffs had acquired the ownership right over the said property. With respect to issue no.2 the trial court has held that the appellants-plaintiffs were in possession of the property immediately after the Exchange Deed was executed but they were dispossessed by the respondents-defendants. The trial court held that the appellants be put in possession of the property and consequently decreed the suit for recovery of possession of the said land. 3. The respondents-defendants being aggrieved of the order dated 27.02.2003 of learned Sub Judge, Kishtwar preferred an appeal before the learned Additional District Judge, Kishtwar, who vide order dated 12.05.2005 set aside the findings of the trial court on the following grounds:- (a) That admittedly property in question was in joint ownership of Naib Chand and contesting respondents. Since there was no document or evidence to suggest that the said property was partitioned, the co-owner Naib Chand could not have sold the property in exchange to the appellants-plaintiffs; (b) That after having stated that the property was jointly owned by the respondents-defendants with Naib Chand as co-owner, no relief of injunction could be claimed against the co-owner. 4. Since there was no document or evidence to suggest that the said property was partitioned, the co-owner Naib Chand could not have sold the property in exchange to the appellants-plaintiffs; (b) That after having stated that the property was jointly owned by the respondents-defendants with Naib Chand as co-owner, no relief of injunction could be claimed against the co-owner. 4. The appellate court held that the possession of the co-owner would not be deemed to be ouster of other co-owner. It is a well settled principle of law that the co-owner in possession would become the constructive trustee on behalf of the co-sharer who is not in possession and the right of such co-owner would be deemed to be protected by the trustee. As a result of this, the appellate court accepted the appeal of the respondents-defendants and dismissed the suit of the appellants-plaintiffs vide order dated 12.05.2005. It is under these circumstances, the present appeal has been preferred by the appellants-plaintiffs. 5. I have heard learned counsel for the parties and perused the record. 6. Mr. Wazir, learned counsel appearing for the appellants-plaintiffs has framed five substantial questions of law, which according to him are required to be determined by this court in the present appeal. 7. On the other hand, Mr. Raina, learned counsel for the respondents-defendants stated that the power of the court to intervene in the present appeal is confined only to a question which is substantial in law and not otherwise. 8. In order to appreciate the rival contentions of learned counsel for the parties, it is important to deal with the facts of the case. 9. It is not in dispute that Exchange Deed was executed by the appellants-plaintiffs with one Naib Chand who is said to be co-owner with defendants-respondents 1 to 4. It has come on record that on the basis of the Exchange Deed, the appellants-plaintiffs were put in possession somewhere in the year 1972 and they continued to remain in possession till the year 1973 when they were dispossessed by the respondents-defendants. 10. The question required to be determined is "whether the property in dispute was owned by Naib Chand with the contesting plaintiffs-respondents 1 to 4 being co-owners in the said property", and "whether Naib Chand could have exchanged this land with the plaintiffs- appellants when property was not partitioned". 11. 10. The question required to be determined is "whether the property in dispute was owned by Naib Chand with the contesting plaintiffs-respondents 1 to 4 being co-owners in the said property", and "whether Naib Chand could have exchanged this land with the plaintiffs- appellants when property was not partitioned". 11. With respect to the first contention, it has come in evidence that the Exchange Deed was executed by Naib Chand with the appellants-plaintiffs in respect of the land measuring 10 marlas comprised in Survey No.1756 situated in village Matta, Kishtwar. The revenue record reveals that the said land is being jointly owned by Naib Chand along with co-owners and the partition of the property was not recorded in the revenue records. Even though, it has come on record that the appellants-plaintiffs after execution of the Exchange Deed were put in possession of the property and remained as such for some times. In order to establish their right on the said property, the plaintiffs-appellants were required to prove (i) that Naib Chand had perfect title and authority to transfer the same ; and (ii) that the property purchased in exchange was in exclusive possession of the seller/vendor. The appellants-plaintiffs though have been able to prove that Naib Chand had title over the property but only as a co-sharer/co-owner and, thus, his capacity to transfer the land to the exclusion of the other co-owners was restricted. The court below had discussed the evidence adduced by the parties in this respect. None of the witnesses produced by the appellants-plaintiffs have stated or suggested that the property in question was partitioned. It has come on record from the statement of the appellants-plaintiffs that the property was jointly owned by Naib Chand as a co-owner with the contesting respondents/defendants. Unless the appellants-plaintiffs prove that Naib Chand had perfect title over the land, his claim to be declared as owner of the same on the basis of the Exchange Deed cannot be sustained. Mr. Wazir, learned counsel for appellants-plaintiffs has further contended that the issue with regard to the property being as jointly owned by the contesting respondents and Naib Chand has not been framed. There is no dispute with respect to the fact that no issue has been framed by the trial court regarding the joint ownership of the land. Mr. Wazir, learned counsel for appellants-plaintiffs has further contended that the issue with regard to the property being as jointly owned by the contesting respondents and Naib Chand has not been framed. There is no dispute with respect to the fact that no issue has been framed by the trial court regarding the joint ownership of the land. The appellate court was under an obligation to frame the issue in this respect and decide the case as such. 12. The question would arise whether appellate court could have dismissed the suit of the appellants-plaintiffs without framing the issue as to whether the property was jointly owned by the contesting respondents with one Naib Chand. There is no doubt that the court has to return the findings only after the issues were framed. The object is to ensure that the parties are given sufficient chance to prove by evidence the case set up by them. It is not possible for a party to prove its case unless the issue to that respect is framed by the court below. This is not absolute truth. Under Order 41 Rule 24 CPC, the appellate court has the power to return the findings if there is sufficient evidence on record regarding the matter which is being disputed by the parties. 13. In the present case, it has come on record that the property is being jointly owned by Naib Chand and the contesting respondents. As a matter of fact, the witnesses produced by the appellants-plaintiffs including Patwari concerned admitted that the property was recorded in the joint ownership of Naib Chand and contesting respondents. So in my opinion, there is no requirement for framing additional issue regarding co-ownership of the land. The parties were aware of their case during the course of the trial and the respondents-defendants have specifically raised this issue that the property was jointly owned by Naib Chand with contesting respondents. I do not find any force in the arguments articulated by the learned counsel for the appellants-plaintiffs. 14. The next question raised by the learned counsel for appellants-plaintiffs is with respect to issues 1 and 3. The contention of the appellants-plaintiffs is that the contesting respondents had conceded these issues in civil revision filed before this court. It is pertinent to mention that issues 1 and 3 were decided by the trial court before a final decree was passed. The contention of the appellants-plaintiffs is that the contesting respondents had conceded these issues in civil revision filed before this court. It is pertinent to mention that issues 1 and 3 were decided by the trial court before a final decree was passed. Against these issues, a revision was preferred by the contesting respondents before this Court, who with the consensus of the learned counsel for the parties directed the trial court to decide the issues afresh and pass appropriate orders thereafter. This is being construed by the learned counsel for the appellants-plaintiffs as acceptance of determination of issues 1 and 3 by contesting respondents. The argument is misconceived. A party can question such an order only after the decree is passed by the trial court. Right to challenge the decree would arise after the decree is passed and not before that. Merely because issues 1 and 3 came to be decided by the trial court before the final decree is passed would not stop the contesting respondents to challenge the same in the final decree. 15. Mr. Wazir, learned counsel for the appellants-plaintiffs has relied upon judgments Girdhari Lal Vs. Thoru and another reported in 1992 KLJ 711, Khatoon Magray and others reported in 2005 (2) JKJ 210 (HC), Raju and another Vs. Muthuammal and others reported in AIR 2004 Madras 134 and State of Rajasthan Vs. Harphool Singh through his LRs reported in 2000(5) SCC 652. 16. On the other hand, Mr. Raina, learned counsel for the respondents-defendants has relied upon the judgment Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujjar and others reported in AIR 1999 SC 2213. 17. I have perused the judgments relied upon by Mr. Wazir, learned counsel for the appellants-plaintiffs. The import of these judgments does not cover the case in hand. Mr. Wazir has emphasized that the trial court has proceeded to decide the case without framing the issue with regard to joint ownership. He has also stated that there is no determination made by the trial court as required under Order 41 Rule 31 CPC. The import of the judgments does not cover the case on hand. As already discussed hereinabove, framing of additional issue was not required as parties had already led the evidence on this question before the trial court even though no issue was framed. Hence, these judgments are not applicable in the case on hand. 18. The import of the judgments does not cover the case on hand. As already discussed hereinabove, framing of additional issue was not required as parties had already led the evidence on this question before the trial court even though no issue was framed. Hence, these judgments are not applicable in the case on hand. 18. On the other hand, I have also perused the judgment relied upon by Mr. Raina, learned counsel for the respondents-defendants. Mr. Raina has stated that no substantial question of law is involved in this appeal which is required to be determined by this court. He has stated that all the questions raised by the appellants-plaintiffs, more particularly the question that the appellate court without framing issue on the co-owner has decided the case, would not be substantial question of law, mainly when there is sufficient evidence on record that the property is jointly owned by the contesting respondents with Naib Chand. 19. In view of the above, there is no force in this appeal, which is, accordingly, dismissed along with connected CMP(s), if any.