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2008 DIGILAW 499 (DEL)

Binod Bihari Jaina v. Raja Bahadur Singh

2008-05-15

PRADEEP NANDRAJOG

body2008
J.(Oral) 1. Heard learned counsel for the parties. 2. The appellant is aggrieved by an order dated 1.4.2002 passed by the learned Appellate Judge disposing of RCA No.386/2000. 3. Vide impugned order dated 1.4.2002 the learned Appellate Judge has set aside the judgment and decree dated 1.4.1997 passed by the learned Trial Judge and has remanded the matter to the learned Trial Judge for fresh adjudication. 4. The learned Appellate Judge has held that a vital issue was not framed. The learned Appellate Judge has framed the issue and as a consequence has remanded the matter. 5. The issue framed by the learned Appellate Judge reads as under:- “Whether the plot Nos.172-173 exist in Guru Angad Nagar, Khureji Khass, Shahdara, Delhi? OPP.” 6. To appreciate the controversy between the parties and the legality of the impugned order certain backdrop facts may be noted. 7. Respondents filed a suit for perpetual injunction on 12.3.1986 against the appellants seeking a decree of injunction restraining the appellants from taking forcible possession of plot No.172 and 173 ad-measuring 50 sq.yds, claiming that the said plots were carved out of Khasra No.52/6 and were given numbers 172 and 173 in the colony Guru Angad Nagar, Khureji Khass, Shahdara, Delhi. 8. The defence taken by the respondents was that no such plots existed in the colony and that the title deed relied upon by the appellants did not pertain to the land at site which was in possession of the respondents. According to the respondents, the land in question bore No.133, West Guru Angad Nagar, Gurudwara Road, Khureji Khass, Shahdara, Delhi. 9. On the pleadings of the parties the learned Trial Judge framed the following substantive issue:- .“Whether the plaintiffs are entitled to the relief claimed in the plaint? OPD.” 10. An issue relating to non-joinder of necessary party was also framed. 11. In view of the respective pleadings of the parties, evidence was led. Title documents were proved. Unfortunately for the parties the colony is an unauthorized colony and hence there is no approved layout. The issue was thus debated with reference to the location of the land at site and boundaries thereof with reference to the adjoining lands. 12. Deciding issue No.2, learned Trial Judge noted the claim of the respondents that they were the owners in possession of 50 sq.yds. The issue was thus debated with reference to the location of the land at site and boundaries thereof with reference to the adjoining lands. 12. Deciding issue No.2, learned Trial Judge noted the claim of the respondents that they were the owners in possession of 50 sq.yds. of land bearing plot No.172-173, Guru Angad Nagar, Khureji Khass, Shahdara, Delhi and that the land was carved out of Khasra No.52/6. The learned Trial Judge also noted the defence of the appellants that the suit land was actually bearing Municipal No.133, Guru Angad Nagar, Khureji Khass, Shahdara, Delhi and that they were in possession thereof. 13. Discussing the evidence learned Trial Judge has observed in para 9: “It was for the plaintiffs, to prove that plot No.172-173 due existed in Khasra No.52/6”. 14. In para 13 the learned Trial Judge has held that: “It was for the plaintiffs to establish that they are presently in possession of plot No.172-173 but they have failed to lead any .evidence on record regarding existence of any such plot........” 15. Further finding has been returned after discussing the evidence that: “It cannot be said that any plot No.172-173 existed/exists in the year 1977 or even thereafter”. 16. The discussion has concluded in para 14 of the decision by the learned Trial Judge recording a conclusive finding that the evidence led by the parties did not establish existence of any plots bearing No.172-173, Guru Angad Nagar, Khureji Khass, Shahdara, Delhi. 17. It is obvious that pertaining to issue No.2 framed by the learned Trial Judge, parties were conscious of the fact that the debate is on the subject whether the suit land was bearing plot Nos.133, Guru Angad Nagar, Khureji Khass, Shahdara, Delhi or plot No.172-173, Guru Angad Nagar, Khureji Khass, Shahdara, Delhi. 18. Thus, the learned Appellate Judge has wrongly concluded that the real issue was not debated between the parties. 19. It is settled law that where a specific issue is not framed but the parties understand that a particular issue, worded widely, covers the specific issue and have led evidence relatable thereto, neither party can urge that prejudice has been caused to the party by not framing a specific issue. 20. Under the circumstances the appeal is allowed and the impugned order dated 1.4.2002 is set aside with consequential directions to the learned Appellate Judge to decide RCA No.386/2000 on merits. 21. 20. Under the circumstances the appeal is allowed and the impugned order dated 1.4.2002 is set aside with consequential directions to the learned Appellate Judge to decide RCA No.386/2000 on merits. 21. Before concluding, a submission of learned counsel for the respondents may be noted. Learned counsel urges that in the first appeal, appellants made a statement that they do not wish to contest the appeal, meaning thereby, the appellants consented to the suit being decreed. 22. Needless to state, if there is any material before the learned Appellate Judge to support and to sustain the submissions made at the Bar today, while considering the appeal, learned Appellate Judge would take note of such material. 23. Parties are directed to appear before the learned District Judge on 3.7.2008. RCA No.386/2000 disposed of by Mr.Raj Paul Singh Teji, Additional District Judge shall be restored and decided as per law. 24. No costs.