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2011 DIGILAW 3617 (MAD)

M. Ganesan v. M. Gnanam

2011-08-09

R.S.RAMANATHAN

body2011
JUDGMENT :- The unsuccessful plaintiff is the appellant herein. 2. The appellant/plaintiff filed the suit for injunction, restraining the respondents/defendants from interfering with his peaceful possession and enjoyment of the suit saw mill for a period of five years, as per the panchayat agreement dated 6.6.2005. 3. The case of the appellant/plaintiff was that the suit property and other properties belonged to his father by name Mr.Manickam. After his demise, there was a panchayat that took place on 6.6.2005 and in the said Panchayat, an agreement was arrived at, whereby, the appellant/plaintiff was permitted to manage the suit saw mill for a period of five years and the other properties were given to the respondents 1 to 4 and as his enjoyment of the suit saw mill was disturbed and interfered with by the respondents, the suit was filed for the relief stated above. 4. The respondents/defendants contested the suit, admitting the panchayat agreement dated 6.6.2005 and the allotment of the suit saw mill in favour of the appellant/plaintiff. But, they also contended that the appellant/plaintiff did not act according to the terms of the panchayat agreement and therefore, the same was cancelled on 10.8.2005 and that the appellant/plaintiff has no right to enjoy the suit saw mill. The said Mr.Manickam. viz., plaintiff's father, also executed a Will on 1.3.2003, in favour of the first respondent, bequeathing all the properties belonging to him and on his demise on 11.6.2003, the said Will came into force and the first respondent became the absolute owner of the suit properties and other properties. It was further stated that under the agreement dated 6.6.2005, the appellant/plaintiff was given license to manage the suit saw mill and later on, that license was also cancelled by the first respondent and hence, the appellant/plaintiff cannot claim any right and he was also not in possession of the suit saw mill. 5. The Trial Court dismissed the suit holding that the plaintiff's father, Mr.Manickam executed a Will dated 1.3.2003, in favour of the first respondent and the said Will was proved through witnesses and as per the Will, the first respondent became absolute owner of the property. The Trial Court further held that the panchayat agreement dated 6.6.2005, was cancelled by an agreement dated 10.8.2005 and therefore, the appellant/plaintiff cannot claim any right over the suit properties. The Trial Court further held that the panchayat agreement dated 6.6.2005, was cancelled by an agreement dated 10.8.2005 and therefore, the appellant/plaintiff cannot claim any right over the suit properties. Though the Trial Court held that the first defendant was not owner of the property, the relief of injunction in favour of the appellant/plaintiff was denied on the ground that the plaintiff has not come to Court with clean hands and he suppressed the caveat filed by the respondents. Aggrieved by the same, the appellant/plaintiff has filed an appeal and the First Appellate Court also confirmed the findings of the Trial Court regarding the Will and the cancellation of the agreement dated 6.6.2005 by an agreement dated 10.8.2005 and also confirmed the findings regarding the relief of injunction. Hence, this Second Appeal. 6. The following substantial questions of law were framed at the time of admission of this Second Appeal:- i) Whether the Courts below committed a grave error in deciding the genuineness of the Will dated 1.3.2003, in a suit for bare injunction? ii) Whether the Trial Court committed an error in shifting the burden on the plaintiff to establish the cancellation of the earlier Family arrangement? 7. The learned counsel for the appellant Mrs.Chitra Sampath, submitted that having regard to the efflux of time, the relief prayed for in the suit has become infructuous and therefore, there is no need to reverse the judgment and decree in respect of the relief of injunction prayed for by the appellant. Nevertheless, she submitted that the Trial Court has unnecessarily framed issue No.2, regarding the validity of the Will, alleged to have been executed by the said Mr.Manickam and the said issue No.2, was not at all relevant for deciding the issue in a suit filed by the appellant and such issue ought not to have been framed and decided by the Trial Court. Hence, the findings of the Courts below in respect of the Will has to be set aside. 8. The learned counsel for the appellant further submitted that even according to the admission of the attesting witness, the Will was executed at Viyasarpadi, Chennai. Hence, the findings of the Courts below in respect of the Will has to be set aside. 8. The learned counsel for the appellant further submitted that even according to the admission of the attesting witness, the Will was executed at Viyasarpadi, Chennai. Therefore, the Will has to be probated before this Court and without probating the Will, the party cannot rely upon the Will and without properly appreciating the same, both the Courts below relied upon the same and gave findings about its validity, which is not at all relevant for deciding the issue involved in the suit. Hence, the findings regarding the Will dated 1.3.2003, are to be set aside. In support of her contention, she also relied upon the following two judgments:- a) A.I.R. 1966 ORISSA 99 in the case of ( Hari Sahu @ Harihar Sahu Vs. Janha Sahu and others) b) A.I.R. 1953 Hyderabad 170 in the case of( Lakshmamma Vs. Someswar Rao and another) 9. On the other hand, Mr.T.R.Rajaraman, the learned counsel appearing for the respondents submitted that no objection was raised by the appellant/plaintiff before the Trial Court as well as before the First Appellate Court, regarding the framing of issue No.2, relating to the validity of the Will. Moreover, the appellant/plaintiff filed the suit for injunction on the basis of the agreement dated 6.6.2005 and the defence of the respondents/defendants was that the said agreement was cancelled and the said Mr.Manickam, also executed a Will dated 1.3.2003 in favour of the first defendant, bequeathing all the properties, including the suit properties to him. Therefore, having regard to the pleadings by the plaintiff and the defendant, issue No.2, relating to the validity of the Will was framed and after evidence was let in, findings were given and hence, such findings cannot be set aside. 10. Heard both sides. 11. Admittedly, the appellant/plaintiff filed the suit for permanent injunction on the basis of the agreement dated 6.6.2005, entered into between the parties. According to the appellant/plaintiff, under the said agreement, he was given management of the suit saw mill for a period of five years. The respondents also admitted the agreement dated 6.6.2005 and stated that subsequently, the said agreement was cancelled by an agreement dated 10.8.2005 and also pleaded that the father, Mr.Manickam, executed a Will dated 1.3.2003, bequeathing all the properties in favour of the first defendant. 12. The respondents also admitted the agreement dated 6.6.2005 and stated that subsequently, the said agreement was cancelled by an agreement dated 10.8.2005 and also pleaded that the father, Mr.Manickam, executed a Will dated 1.3.2003, bequeathing all the properties in favour of the first defendant. 12. Therefore, having regard to the pleadings and the relief prayed for in the suit, as rightly contended by the learned counsel for the appellant, the issue regarding the validity of the Will is unnecessary and the Trial Court ought not to have framed that issue in the suit filed by the appellant/plaintiff. The relevant issue is whether the suit saw mill was given to the appellant/plaintiff under the agreement dated 6.6.2005 and whether the said agreement was subsequently canceled on 10.8.2005? The Court can also frame a issue regarding possession whether the plaintiff is in possession of the suit saw mill? Therefore, the issue regarding the validity of the Will is not at all necessary to decide the issue in the suit filed by the plaintiff, because, even assuming that the first defendant has got title to the suit property under the Will, as alleged by him, if the agreement dated 6.6.2005 is upheld, then the appellant/plaintiff is entitled to be in possession of the suit saw mill, as the agreement was signed by the first defendant also. 13. It has been held by the Hon'ble Supreme Court in the judgment reported in A.I.R. (2001) S.C.C 490 : ( 2001) 2 S.C.C. 652 in[ Makhan Lal Bangal Vs. Manas Bhunia] that " the object of an issue is to tie down the evidence, arguments and decision to a particular question, so that there may be no doubt on what the dispute is. The correct decision of the civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. Further, the issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties, specifically and unambiguously emerging out of the pleadings.'' The Hon'ble Supreme Court also held in several cases that the duty of framing proper issues rests with the Judge. 14. Our High Court has also held in a judgment reported in (2001) A.I.H.C 1053 (Madras) in[Kanniammal Vs. 14. Our High Court has also held in a judgment reported in (2001) A.I.H.C 1053 (Madras) in[Kanniammal Vs. Mehroon] that "omission to frame issues or proper issues may be fatal and the case may be remanded for fresh trial and where proper issues were not framed, judgment can be set aside by the Appellate Court and the case remanded for retrial, as also held in the judgment reported in (2001) AIHC 2939 in [ C.Vellaisamy Vs. C.Chinnakannu]. 15. Though under Order 14, Rule 2, of C.P.C., the Court is bound to pronounce judgment on all issues subject to the provisions of sub-rule (ii), the duty of the Court is to pronounce judgment on all issues which are relevant for deciding the matter in controversy between the parties and when the duty is cast upon the Court to frame proper issues and improper or wrong issues framed, there is no necessity for the Court to give a finding on all those issues which are not necessary to decide the controversy between the parties. Order 14, Rule 5 of C.P.C., was substituted by amendment Act, 2002 and as per the said Rule, the Court has got power to amend issues or frame additional issues, as may be necessary, for determining the matters in controversy between the parties, before passing a decree and as perSub -section 2 of Rule 5, the Court also has got power at any point of time, before passing a decree, to strike out any issue that appear to it, to be wrongly framed or introduced. Therefore, as per Rule 5 of Order 14, the Court has got power to strike out any issue that appear to it to be wrongly framed or introduced. 16. Further, it has been held in the judgment reported in A (1971) Madhya Pradesh 172 in [Lekhraj Vs. Sawan] that if issues are wrongly framing on disputed evidentiary facts not necessary for determination of the suit, the Court cannot decline to strike them out. Hence, duty is cast upon the Court to frame proper and necessary issues for deciding the controversy in a issue between the parties and unnecessary issues are to be avoided. 17. In this case, as stated supra, the suit was filed based on the agreement dated 6.6.2005, and the execution of the agreement was admitted in the written statement and it was further contended that the same was cancelled. 17. In this case, as stated supra, the suit was filed based on the agreement dated 6.6.2005, and the execution of the agreement was admitted in the written statement and it was further contended that the same was cancelled. The respondents/defendants were able to prove that the agreement was cancelled, the plaintiff is not entitled to the relief of injunction and otherwise, the plaintiff is entitled to the relief of injunction. The issue regarding the execution of the Will by the said Mr.Manickam dated 1.3.2003 is not at all relevant for deciding the controversy and even assuming that the Will was executed by the plaintiff's father Mr.Manickam, after the Will came into force, according to the appellant/plaintiff there was an agreement between the parties under which, he was put in possession of the suit saw mill. Therefore, there is no need to frame issue regarding the execution of Will by the father and there is no need for giving any finding regarding the execution of the Will. 18. Further D.W.2, the attesting witness to the Will has stated in clear terms that while the said Mr.Manickam, is taking treatment at Viyarsarpadi, he executed the Will. Therefore, the Will was executed at Chennai and therefore, without probating the Will, the respondents/defendants cannot rely upon the same. For all the reasons stated above, I am of the opinion that both the Courts below unnecessarily framed issue No.2 regarding the execution of the Will by father, Mr.Manickam and the findings in respect of that issue is not at all necessary for the disposal of the suit. Therefore, the substantial question of law No.1 is answered in favour of the appellant and the findings rendered by the Court below regarding the execution of the Will and the genuineness and validity of the Will dated 1.3.2003, are set aside. 19. As rightly submitted by the learned counsel for the appellant, the relief sought for in the suit has become infructuous due to efflux of time and therefore, there is no need to render any finding regarding the second substantial question of law and hence, the Second Appeal is dismissed with the observation stated above, regarding the setting aside of the findings in respect of the execution of the Will. In the circumstances, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.