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2012 DIGILAW 1076 (JHR)

Bidya Bhushan Prasad v. Choudhary Jagarnath Singh

2012-07-27

N.N.TIWARI

body2012
ORDER This appeal is against the order of remand dated 24.12.2003 passed in Title Appeal No.23 of 1994, whereby learned Vth Additional District Judge, Palamau has framed a new issue and remanded to the trial court for deciding the same. The issue framed by learned court is “whether any forgery was the motive factor of such orders and whether any forgery was committed in Exbt.D/6/1.” 2. The sole ground taken by the appellant is that the said issue does not at all arise in the suit between the parties being title Suit No.102 of 1966 and the order of remand is wholly misconceived contrary to law and liable to be set aside. 3. In the suit, the defendant Nos. 1 and 2 had only appeared and filed written statement. The State of Bihar was a party, but did not appear in the suit. 4. In their written statement, the defendant Nos. 1 and 2 had taken several grounds for contesting the suit. But there was no pleading alleging forgery of revenue record (Exbt.D/6/1). 5. In order to appreciate the said ground of the appellant, the pleadings of the parties in the suit are required to be seen. 6. The appellant was the plaintiff in the court below. He had filed the said Title Suit No.102 of 1966 in the court of Munsif, Palamau seeking declaration that the lands in Schedule-B are the raiyati lands of the plaintiff over which the defendant Nos. 1 to 5 have no right, title and interest. Their possession over the suit land is as trespassers and the alleged settlement made by defendant No.5 is invalid and inoperative. The plaintiff/appellant had further prayed for restoration of possession of the suit land after ejecting the defendant Nos. 1 to 5 there from and also for a decree of mesne profits. 7. According to the plaintiff, the suit lands of village Dulhi, P.S. Patan, District Palamau are part of Bakast land which were in khas possession of the ex-landlord. In Partition Suit No.8/16 of 1931, the said lands were described in Schedule-A allotted to Ram Sewak Sahu. The plaintiff's father purchased the lands of Schedule-A allotted to Ram Sewak Sahu and others. The plaintiff's father was put in possession of the lands by the venders. In Partition Suit No.8/16 of 1931, the said lands were described in Schedule-A allotted to Ram Sewak Sahu. The plaintiff's father purchased the lands of Schedule-A allotted to Ram Sewak Sahu and others. The plaintiff's father was put in possession of the lands by the venders. After death of plaintiff's father, the plaintiff and his brother jointly came in possession of the suit land and by amicable arrangement, they separated and partitioned the land half and half. The plaintiff and his brothers are, thus, in peaceful possession of the land described in Schedule-A. 8. After vesting of Zamindari, Return was filed in 'K' Form by the plaintiff and his brothers giving rise to A.R. Case No.304 of 1955-56. In the said case the Revenue Officer never visited the spot. In another case being A.R. Case no. 281/392 of 1959-60, Istehar was published but no objection was filed by the defendant Nos. 1 to 6. The plaintiff was under impression that the spot inspection and enquiry shall be held in the said case. Subsequently, the plaintiff and his father filed a petition for getting land improvement loan. The Circle Inspector made enquiry and found possession of the plaintiff and his brother Pursottam Lal and recommended for releasing loan amount as applied for by them. The plaintiff, thereafter, sold portion of land of Schedule-A to different persons including Yugeshwar Singh. The transferees came in possession of the suit land. After transferring some portions, the plaintiff and his brother remained in khas possession of the remaining land of Schedule-A, which is described in Schedule-B of the plaint. The lands of Schedule-B is the suit land. 9. The further case of the plaintiff is that in the month of November, 1962 when the paddy crops grown in the suit land was almost ripe for harvesting, the defendant Nos. 1 and 2 and their father started claiming over the land and making attempt to harvest the crop. The dispute led to a proceeding under Section 144 Cr.P.C. which was subsequently converted into a proceeding under Section 145 Cr.P.C. 10. In course of enquiry in the said proceeding, the defendant Nos. 1 and 2 falsely claimed to have got settlement of the said land from the State of Bihar and also that rent has been assessed in their names on that basis by the State. In course of enquiry in the said proceeding, the defendant Nos. 1 and 2 falsely claimed to have got settlement of the said land from the State of Bihar and also that rent has been assessed in their names on that basis by the State. The plaintiff claimed that the land was their Bakast land and State of Bihar had no authority or right to make any settlement in favour of the defendants. 11. The further case of the plaintiff is that though notice under Section 80 C.P.C. was served, the State of Bihar remained silent and the plaintiff had to file a suit for the reliefs prayed for, as mentioned above. The State of Bihar also did not file written statement in the suit. 12. The defendants Nos. 1 and 2 contested the suit by filing written statement, and taking various grounds and legal objections. They claimed that the suit lands were orally given on 'Adh-Batai' raiyati settlement by the plaintiff and his father to Choudhary Janki Singh father of defendant Nos. 1, 2, 4 and 5 for cultivation, about 23-24 years ago. The defendants since thereafter have been in continuous cultivating possession of the said land and they have acquired occupancy right over the same. No rent receipt in respect of the land was ever granted by the plaintiff or his brother. The assessment of rent in favour of the plaintiff was cancelled after holding an enquiry in a Tanaza on 20.7.1957. 13. Though the plaintiff had filed Return in Form 'K' and A.R. Case no.304/55-56 was initiated, rent was not assessed under Sections 5, 6 and 7 of the Bihar Land Reforms Act. There was no cause of action for filing the suit by the plaintiff and the same is liable to be dismissed. 14. On the said pleadings of the parties, the trial court framed several issues. Learned trial court recorded his findings holding that the plaintiff has got title over the suit land, but dismissed the suit for non-rejoinder of his brother as a party. 15. Against the judgment and decree of learned trial court, the plaintiff/appellant filed Title Appeal No.23/1994. 16. By the impugned order, the appellate court framed a new issue, as aforesaid, and remanded the case to learned trial court for the decision. 17. 15. Against the judgment and decree of learned trial court, the plaintiff/appellant filed Title Appeal No.23/1994. 16. By the impugned order, the appellate court framed a new issue, as aforesaid, and remanded the case to learned trial court for the decision. 17. Order XIV of the Code of Civil Procedure deals with the provision of framing of issues, which reads thus :- “Framing of issues.-(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.” 18. On plain reading of the said provision, it is clear that the issue, arises when a material proposition of fact or law, is affirmed by one party and denied by the other. 19. It is evident from the pleadings of the parties that it was nobody's case that the revenue record is a forged document. 20. The said issue, thus, does not at all arise in the instant case. 21. Learned lower appellate court, without taking into consideration the said legal provision and the pleadings of the parties, has erroneously framed an issue which does not arise out of the pleadings of the parties. Learned court has remanded the case to the trial court for deciding the said issue. 22. As discussed above, there was no occasion for framing the said issue and remitting the case for decision on the same. Learned court has remanded the case to the trial court for deciding the said issue. 22. As discussed above, there was no occasion for framing the said issue and remitting the case for decision on the same. The impugned order of learned lower appellate court is, thus, wholly erroneous and unsustainable. 23. This appeal is, accordingly, allowed. The impugned order dated 24.12.2003 passed in Title Appeal No.23 of 1994 is set aside. The interim order is vacated. Learned lower appellate court is directed to hear and dispose of the appeal on merit as expeditiously as possible.