Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1063 (HP)

Pushpa Devi v. Kesri Ram

2014-08-08

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. Both the appeals have been directed against the impugned order dated 13.1.2014 passed by the learned Additional District Judge, Solan. 2. The facts in brief are that appellants-plaintiffs filed a suit for declaration to the effect that the sale deed No. 80 dated 19.5.2011 executed by the original defendant No. 1 Smt. Mathru, (deceased, succeeded by the respondent No. 1 being her husband) in favour of respondent No. 2 to 4 is wrong, illegal, null and void and the same does not confer any right, title and interest unto the respondent No. 2 to 4, over and above her actual share in the suit land, as such transfer in excess of the share is illegal and not binding upon the appellants. Consequential mutation No. 305 dated 7.6.2001 sanctioned pursuant to the sale deed No. 80 was also wrong, illegal, null and void. The appellants-plaintiffs also laid challenge to the mutation No. 261 dated 15.10.1985 sanctioned in favour of the deceased defendant No.1. Smt. Mathru, with respect to the estate of Smt. Dhauli, attested behind the back of the appellants-plaintiffs, the same being wrong, illegal, null and void. The revenue entries showing the defendant No. 1 to be owner in possession of 42 Bighas and 15 Biswas of and are wrong and against the facts. The same are also not binding on the appellants. The appellants further claimed that one Dharma had three sons named Shri Kirpa, Shri Matha and Shri Mastia alias Mast Ram. Shri Kirpa Ram had one daughter Smt. Mathru, the original defendant No.1 (now deceased, succeeded by her husband Shri Kesri Ram, the respondent No.1). Smt. Mathru was having 1/3rd share in the suit land, which she inherited from her mother (paternal side). The second son of Shri Dharma namely Shri Matha died intestate and his widow Smt. Dhauli succeeded to his estate. Smt. Dhauli also died intestate on 23.2.1976 leaving behind no issue and she was succeeded by sole alive son of Shri Dhama namely Shri Mast Ram @ Mastia. Shri Mastia executed a Will in favour of the present appellants and as such the entire estate of Shri Mastia devolved upon the appellants. Therefore, the appellants are owner in possession of the suit land i.e. qua the share of Shri Matha and Mastia. Shri Mastia executed a Will in favour of the present appellants and as such the entire estate of Shri Mastia devolved upon the appellants. Therefore, the appellants are owner in possession of the suit land i.e. qua the share of Shri Matha and Mastia. The alleged mutation No. 261 dated 15.10.1985 showing the defendant No. 1 to be sole successor of deceased Dhauli is wrong, illegal, null and void and does not confer any right, title and interest in favour of Smt. Mathru, the original defendant No.1. The sale deed No. 80 executed by Smt. Mathru, over and above her 1/3rd share, is also wrong having no binding effect on the appellants. 3. The respondent No.1 contested the suit and filed written statement thereby taking preliminary objections with respect to locus standi, maintainability of the suit specifically in view of the another suit titled as Smt. Mathru versus Krishan Dutt, and also the suit being filed on the basis of the wrong revenue entries. On merits, the respondent No. 1 denied the claim of the appellants and claimed the share of Smt. Dhauli widow of Shri Matha on the basis of Will, alleged to have been executed by Smt. Dhauli in favour of Smt. Mathru wife of Shri Kesri Ram, the present respondent No.1. 4. The respondents No. 2 to 4 filed a separate written statement and took plea of bonafide purchaser for consideration and denied the claim of the appellants on merits. 5. To understand the dispute in question, it is necessary to draw the pedigree table, which is as follows:- DHARMA KIRPA (son) MATHA (son) MASTIA(son) (died in 1940) (dies issueless in 1958) (died issueless in 1977, had executed Will in favour of the appellants) Kaula (wife) Dhauli (wife) Naumi (wife) (died in 1960) (died in 1976, alleged Will in favour of the Defendant No.1 Mathru, incorporated in revenue record vide M.No. 261 dtd.15.10.1985 Mathru (daughter) defendant No.1. Died during the pendency of the suit. Succeeded by her husband Shri Kesri Ram Defendant/respondent No.1. APPELLANTS/PLAINTIFFS are successors of late Shri Mastia, on the basis of the Will dated 2.1.1977, incorporated in revenue record vide mutation No. 240 dated 26.4.1979. 6. Died during the pendency of the suit. Succeeded by her husband Shri Kesri Ram Defendant/respondent No.1. APPELLANTS/PLAINTIFFS are successors of late Shri Mastia, on the basis of the Will dated 2.1.1977, incorporated in revenue record vide mutation No. 240 dated 26.4.1979. 6. The learned trial court after framing the issues recorded the evidence and after evaluating the same decreed the suit of the appellants and partly declared the sale deed No. 80 to be null and void in so far as it exceeding the share of Smt. Mathru, which she had inherited from her mother Kamla. 7. The respondent No. 1 filed an independent appeal against the judgment and decree passed by the learned Civil Judge (Senior Division), Kandaghat, registered vide Civil Appeal No. 36- S/13 of 2013. The respondents No. 2 to 4 also filed separate appeal registered vide Civil Appeal No. 26-S/13 of 2011. 8. The learned lower appellate court allowed both the appeals and set-aside the judgment and decree passed by the learned trial court and remanded the suit for recording the evidence on following additional issues:- Issue No. 1-A. Whether Sh. Mast Ram @ Mastia during his life time had executed a Will in favour of the plaintiffs, if so, its effect? OPP. Issue No. 1-B. Whether Smt. Dhauli during her life time had executed any Will in favour of Smt. Mathru, defendant NO. 1 since deceased? OPD-1. Issue No.1-C. If issue No. 1-A and B are not proved in affirmative, whether, defendant No. 1 Smt. Mathru was legally competent to execute sale deed in favour of defendants No. 2 to 4? OPD-1. It is this order, which is under challenge before this court. 9. It is contended by Sh. Pratap Singh Goverdhan, learned counsel for the appellants that learned first appellate court has wrongly framed the additional issue 1(a) with respect to the execution and validity of the Will of Shri Mastia executed in favour of the appellants- plaintiffs inasmuch as the respondent No.1 did not, specifically and categorically deny the execution of the Will by Shri Mastia in favour of the appellants. Though, the respondent No. 1 in her pleadings i.e. late Smt. Mathru, the original defendant No.1, denied the claim of the appellants-plaintiffs, but there is no specific denial with respect to the execution of the Will by Shri Mastia in favour of the appellants, neither in the pleadings nor in the evidence of the respondent No.1. The respondent No. 1 did not even claim the share/ estate of Shri Mastia. Not even a single word has been whispered in the written statement. To the utter dismay of the appellants, the learned first appellate court failed to appreciate the pleadings of the respondent No. 1 in its right perspective and wrongly came to the conclusion that the appellants are required to prove the Will of Mastia. The learned Judge entered into gross error of law and framed the additional issue No. 1(a), which is beyond the scope of the pleaded facts/ pleadings. Not only this, the learned first appellate court also lost sight of the fact that the respondent No.1, even did not dispute the execution of the Will while leading evidence and also at the time of cross-examining the appellant and their witnesses. As such the impugned order is not sustainable in the eyes of law and liable to be quashed and set aside. 10. It is further argued that the learned first appellate Court erred in framing additional issue No. 1(b) inasmuch as the respondent No. 1 did not set up the alleged Will of late Smt. Dhauli nor produced the copy of the Will at the trial of the suit and leading evidence thereof. The defendant No. 1 deliberately and intentionally abandoned her claim based on alleged Will of Smt. Dhauli, which fact is evident from the conduct of the respondent No. 1 and also from the evidence already produced on record. The respondent No.1, despite availing number of opportunities to lead evidence, did not produce the alleged Will of Smt. Dhauli and intentionally gave up her defense/ claim based on the alleged Will of Smt. Dhauli. Not only this, the respondent No. 1 also did not assail the judgment and decree passed by the learned Civil Judge (Senior Division) Kandaghat on this specific ground. Not only this, the respondent No. 1 also did not assail the judgment and decree passed by the learned Civil Judge (Senior Division) Kandaghat on this specific ground. No complaint has been made in the memo of the appeal that the prejudice has been caused to her/ him due to non framing of the issue of Will of late Smt. Dhauli or he has been deprived of leading evidence for want of proper issue of the Will or has been taken with surprise as no issue of Will was framed. On the contrary, there is categorical reference made by the respondent No. 1 in his examination in chief, submitted by way of affidavit, with respect to the execution of the Will of Smt. Dhauli, but despite that no Will was ever produced. Even during pendency of the appeal, the respondent No. 1 did not place on record the alleged Will. The learned first appellate wrongly exercised its jurisdiction while framing issue No. 1(b) with respect to the execution of the alleged Will by Smt. Dhauli in favour of Smt. Mathru, the deceased defendant No.1. The learned first appellate court desperately failed to appreciate that once the respondent No.1 deliberately abandoned the claim based on the alleged Will of late Smt. Dhauli, despite availing number of opportunities to lead evidence and avail occasions to raise a plea to frame appropriate issue of Will during the trial of the case, which was protracted for about long 10 years before the trial court. Now, after determining the rights of the parties by the trial court, the respondent cannot be permitted to raise the issue of Will. Therefore, the learned first appellate court committed gross illegality of law by framing additional issue No.1(b). The learned first appellate court failed to look into the pleadings and evidence, documentary as well as oral evidence led by the parties during trial of the case. Therefore, the order passed by the learned first appellate court is without jurisdiction and the same is not tenable in the eyes of law, as such liable to be quashed and set-aside. 11. It is further contended that the learned first appellate court failed to appreciate the pleadings of the parties in its right perspective. Therefore, the order passed by the learned first appellate court is without jurisdiction and the same is not tenable in the eyes of law, as such liable to be quashed and set-aside. 11. It is further contended that the learned first appellate court failed to appreciate the pleadings of the parties in its right perspective. The learned first appellate court even failed to consider the most important fact of the case that the original defendant No. 1 late Smt. Mathru, never claimed share of Shri Mastia. She only laid claim to the share of Smt. Dhauli, which fact is evident from the pleadings of the defendant No.1 contemplated in paragraph No. 3 of the written statement. Therefore, when she is not claiming the share of Shri Mastia and confined her pleadings to the share of Smt. Dhauli, the question of framing issue No. 1 (a) does not arise at all, i.e. qua Will of Shri Mastia. The learned first appellate court failed to consider this aspect of the matter and wrongly framed issue of Will of late Shri Mastia despite the fact that the respondent No. 1 did not claim or laid any claim to the share of Shri Mastia. As such, the impugned order is not sustained in the eyes of law and the same is liable to be quashed and set-aside. 12. Lastly, it is argued that the impugned order, whereby the learned first appellate court remanded the suit as a whole and directed the trial court to decide the same afresh, is legally not tenable inasmuch as the learned Judge has failed to give reasoning as to why the wholesale remand is necessitated, especially when there is no challenge laid to the findings of the learned trial court pertaining to issue No. 9 i.e. of bonafide purchaser and other related issues. The learned first appellate court did not even consider this aspect of the judgment passed by the learned trial court and lightly set aside the entire decree. The learned Judge also failed to consider the necessity of the retrial on all the issues, as such wrongly remanded the suit as a whole. The learned Judge exceeded the jurisdiction vested in it under law. As such, the impugned order passed by the learned first appellate court is wrong, illegal and not tenable in the eyes of law. The learned Judge also failed to consider the necessity of the retrial on all the issues, as such wrongly remanded the suit as a whole. The learned Judge exceeded the jurisdiction vested in it under law. As such, the impugned order passed by the learned first appellate court is wrong, illegal and not tenable in the eyes of law. As such the same is liable to be quashed and set-aside. 13. On the other hand, Sh. Sudhir Thakur, learned counsel for respondent No.1 would support the judgment and decree passed by the learned lower appellate court remanding the case on the ground that the same was equitable and just as issue No. 1-A provided an opportunity to the plaintiff to prove his Will, while issue No.1-B gave an opportunity to defendant No. 1 to prove the Will in her favour. Moreover, it was contended that the learned trial court could not have been embarked upon any question regarding the validity of the Will especially when no issue to this effect had been framed. 14. Sh. B.C. Verma, learned counsel for respondents No. 2 to 4 represents the subsequent purchaser and adopts the arguments as raised by respondent No. 1 and further contends that his clients are bonafide purchaser for consideration. 15. I have considered the rival submissions of the parties and gone through the records of the case carefully. 16. It is provided under Order 41 Rule 25 that if it appears to the appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial to the Court from whose decree the appeal is preferred and in such case, shall direct such Court to take additional evidence required. But at the same time, it has to be remembered that the order of remand should not be passed as a matter of routine. The first appellate court which has the power to analyse the factual position can decide the issue and the additional issues. But at the same time, it has to be remembered that the order of remand should not be passed as a matter of routine. The first appellate court which has the power to analyse the factual position can decide the issue and the additional issues. Order 41 Rule 25 which gives the power to the appellate court to frame issues and refer them for trial to the Court whose decree appealed from reads thus: “Order 41 Rule 25: Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time to time.” 17. A bare perusal of the aforesaid provision makes it clear that the same comes into operation when the court, from whose decree the appeal is preferred, has omitted to frame or try an issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion, it may, if necessary, frame the issues and refer the same to the trial court. In other words, there is no compulsion on the part of the appellate court to do so. This is clear from the use of the expression “may”. Therefore, the provision of Rule 25 of Order 41 can be invoked only in the following circumstances: “(i) the trial court had omitted to frame an issue; or (ii) to try an issue; or (iii) to determine any question of fact which appears to the appellate court essential to the right decision of the suit upon the merits.” 18. Therefore, the provision of Rule 25 of Order 41 can be invoked only in the following circumstances: “(i) the trial court had omitted to frame an issue; or (ii) to try an issue; or (iii) to determine any question of fact which appears to the appellate court essential to the right decision of the suit upon the merits.” 18. The learned lower Appellate Court has come to the specific conclusion that the plaintiffs/appellants have staked their claim to the suit land on the basis of the Will allegedly made by one Mast Ram alias Mastia as according to them, he alongwith his wife Smt. Naumi Devi, their mother’s sister, being issue-less was residing with them. The Court came to the further conclusion that the plaintiffs while leading evidence had also not adduced necessary evidence with respect to the Will pleaded to have been executed in their favour by Mast Ram alias Mastia that all had been stated by plaintiff Krishan Dutt when he appeared as PW-1 that Mast Ram alias Mastia had executed a Will in their favour but he had not stated as to when, where and in whose presence it has been executed and attested. Moreover, no such Will had been produced by them. 19. It has further been observed by the learned lower Appellate Court that the appellants/plaintiffs have contended that since only the statement made by PW-1 Krishan Dutt on the point of execution of Will by Mast Ram alias Mastia in their favour had not been specifically controverted during cross-examination nor specifically denied by Smt. Mathru in her written statement, so the execution of the Will will be deemed to have been accepted; could not be upheld because it was the issue fixed and not the pleadings that guide the parties in the matter of adducing evidence and that the Court should not decide a suit on a matter/point on which no issue has been framed and for this purpose, he relied upon 2011 (1) Apex Court Judgment 762 SC (name of parties not mentioned). 20. On the strength of such findings, the learned lower Appellate Court framed three additional issues and remanded the case to the trial court by setting aside the judgment and decree dated 31.3.2011 with a direction to the parties to lead evidence in support of the aforesaid additional issues. 21. 20. On the strength of such findings, the learned lower Appellate Court framed three additional issues and remanded the case to the trial court by setting aside the judgment and decree dated 31.3.2011 with a direction to the parties to lead evidence in support of the aforesaid additional issues. 21. It is understandable that issue No.1 was framed on the basis of the reasoning mentioned above but how come issue No.1-B came to be framed is anybody’s guess. The learned lower Appellate Court seems to be totally oblivious to the fact that it was the defendant, who was appellant before him and had never insisted on the framing of additional issue No.1-A. Therefore, in this background, the Court could not have insisted on framing of issue No.1-A when the plaintiffs did not want such issue to be framed and was ready to face the consequences that would follow. It is the plaintiff suit after all which would fail in case his Will is questioned, which obviously is required to be decided on the basis of the pleadings and evidence as already existing because even now it is the plaintiffs who are aggrieved by the impugned order passed by the learned lower Appellate Court. 22. I further cannot agree with the observations made by the learned lower Appellate Court to the effect that “it is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence”. I need to only remind the learned lower Appellate Court the provisions of Order 14 of the Code of Civil Procedure which clearly provides for framing of the issues from the pleadings of the parties. Rule 1 of Order 14 reads thus: “1. 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.” 23. The aforesaid provisions makes it amply clear that issues are to be framed in respect of only those facts, which are alleged by one party and denied or not admitted by other party. They must be confined to material facts i.e. the points on which the right decision of the case depends. Though, the duty to frame issues is on the Court, the responsibility of framing them is also required to be shared by it with the counsel appearing for the either party. 24. They must be confined to material facts i.e. the points on which the right decision of the case depends. Though, the duty to frame issues is on the Court, the responsibility of framing them is also required to be shared by it with the counsel appearing for the either party. 24. The appellants/plaintiffs had made a specific averment in paragraph - 4 of the plaint with regard to the Will, which reads as under: “That Shri Mastia alias Mast Ram had no male or female issue and his wife namely Shrimati Naumi Devi was real maternal aunt of the plaintiffs, therefore, Shri Mastia and Naumi Devi were living with the plaintiffs and were looked after and maintained by the plaintiffs. After succeeding the estate of deceased Dhauli Shri Mastia alias Mast willed away his all movable and immovable properties in favour of the plaintiffs and on his demise on the basis of his valid Will the entire estate was succeeded by the plaintiffs and the plaintiffs became owners in possession of the suit land to the extent of 2/3 in the estate of deceased Dharma which comes to approximately 43 Bighas. Since after the death of deceased Mastia the plaintiffs became owner in possession of the suit land and the remaining 1/3 share remained in the name of defendant No.1 and she never remained in possession of any inch of land out of the suit land. The defendant No.1 was married some where in the year 1953. Since after her marriage the defendant No.1 never came in the village and the entire estate including the land left behind by Kirpa remained in peaceful possession of the plaintiffs. The mutation No. 261 in favour of the defendant and the revenue entries prepared on the basis of alleged mutation are wrong, illegal, null and void and are not binding upon the plaintiffs and the same also do not confer any right, title and interest unto the defendant No.1.” 25. The defendants in the written statement made only a general denial and there was no specific denial to the execution of the Will as would be clear from the paragraph – 4 of the written statement which reads as under: “That the contents of para 3 and 4 are absolutely wrong and are denied. The defendants in the written statement made only a general denial and there was no specific denial to the execution of the Will as would be clear from the paragraph – 4 of the written statement which reads as under: “That the contents of para 3 and 4 are absolutely wrong and are denied. It is admitted to this extent that Matha son of Dharma, died intestate leaving behind his widow namely Smt. Dhauli, who succeeded the estate of deceased Matha. It is absolutely wrong that defendant No.1 manipulating the things and in collusion with the revenue officials got entered and attested the mutation of deceased Dhauli in her favour. The alleged mutation was on the base of WILL which was executed by Dhauli in favour of Mathru. The alleged mutation No. 261 dated 15/10/85 showing the defendant No.1 as to be the sole successors of deceased Dhauli is correct. The revenue entries in favour of defendant No.1 of alleged mutation is correct and every body knows about that mutation which was about 20 to 30 years back. It is denied that mutation was behind the back of predecessor-in-interest of the plaintiff. In fact, Smt. Dhauli widow of Sh. Matha had executed the said land in favour of defendant No.1 by way of will the plaintiff has manipulated the version in question to keep the unlawful possession and obtained the undue advantage from the defendant No.1, she is an old lady. The replying defendant has no concerned with the plaintiff. The plaintiff is tried to grab the said property. Smt. Dhauli was the real sister of replying defendant’s mother No.1 and she died intrusted and hence the replying defendant being her heir and successors become the owner of her share by way of WILL whole of the version is a manipulation and the plaintiff had filed the suit previously simply to harass the replying defendant. The replying defendant No.1 was never married to any one. Whole of the version is a manipulation simply to grab the property of the replying defendant.” 26. Order 8 Rules, 3, 4 and 5 reads as follows: “3. Denial to be specific. – It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Order 8 Rules, 3, 4 and 5 reads as follows: “3. Denial to be specific. – It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. 4. Evasive denial. – Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. 5. Specific denial. – (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. The provisions of Rule 3 has to be read with Rule 5 of Order 8 and reading both rules together, it is clear that every allegation of fact in the plaint, if not denied specifically and denied expressly would be deemed to have been admitted. The provisions of Rule 3 has to be read with Rule 5 of Order 8 and reading both rules together, it is clear that every allegation of fact in the plaint, if not denied specifically and denied expressly would be deemed to have been admitted. The written statement must deal with specific allegation of fact in the plaint and when the defendant denies any such fact, he must do so expressly and specifically. If his denial of a fact is not specific but evasive, the said fact shall be taken to have been admitted. The allegations set out in the plaint, have to be traversed in the written statement which must deal specifically with each allegation of fact in the plaint. 27. On the other hand, under Section 58 of the India Evidence Act, a fact admitted need not be proved. In paragraph – 4 as quoted above, the plaintiffs had set up a specific plea regarding the execution in their favour by Mast Ram alias Mastia. While in response thereto, the respondents had not specifically controverted that the statement made in this paragraph was incorrect and how it was so the same have been simply denied by claiming that the averments in this paragraph are “wrong and denied”. Such an evasive denial attracts Order 8 Rule 5 of the Code of Civil Procedure. 28. Though at this stage, it may be mentioned that the defendants No. 2 to 4 had challenged the execution of the Will but then these defendants had no locus standi to challenge the same since they only the subsequent purchasers. 29. Thus, a bare perusal of the contents of para - 4 of the plaint when read with corresponding averments made in the written statement, clearly establish that the Will executed by Mast Ram alias Mastia has not been disputed by defendant No.1 as has been rightly observed by the learned lower Appellate Court. Therefore, this not being a fact in issue, i.e. issue of fact, there was no requirement of the learned trial Court to have framed such an issue during the course of trial. 30. At this stage, it may be noticed that on 3.7.2003 not only the issues were framed by the learned trial Court but further order was passed to the following effect: “Issues read over to the parties through the Ld. counsel. No other issue pressed. 30. At this stage, it may be noticed that on 3.7.2003 not only the issues were framed by the learned trial Court but further order was passed to the following effect: “Issues read over to the parties through the Ld. counsel. No other issue pressed. Put up for PWs on usual terms for 7.10.2003.” 31. The defendants, as observed, did not claim the trial of any other issues nor was any further proceedings by way of revision etc. resorted to. Even when the appeal was preferred before the learned lower Appellate Court, no specific ground with respect to the issues was raised and only an omnibus ground was taken which reads as follows: “xi. That the Ld. Trial Court has failed to cast proper issues on the basis of the pleadings of the parties in the case.” Thus, it can be safely concluded that the defendant No.1 by her act and conduct had waived off her right to claim an issue by specific conduct and due acquiescence. 32. Rule 25 of Order 41 applies only to those cases in which the trial court has omitted to frame any issue or to try any issue. Where it has not omitted to frame or to try an issue, no order of remand under this rule can be made by the appellate court. Once there was no pleadings controverting the execution of the Will by Mast Ram alias Mastia then how on the learned lower appellate court expected the trial court to have framed an issue to this effect. 33. Now, insofar as framing of issue No.1-B is concerned, which relates to the execution of the alleged Will by Smt.Dhauli in favour of Smt. Mathri, deceased defendant No.1, I find a great deal of force in the submission of learned counsel for the appellants that in case defendant No.1 was serious enough to prove the Will, atleast a copy thereof, if not original, should have been placed on record. Thus, in such circumstances, it is legitimate to conclude that the respondent No.1 had deliberately abandoned the claim based on the alleged Will. The parties have undergone protracted litigation for over a period of ten years, the respondent No.1 has not even cared to place on record the copy of the Will let alone proving the same. Thus, in such circumstances, it is legitimate to conclude that the respondent No.1 had deliberately abandoned the claim based on the alleged Will. The parties have undergone protracted litigation for over a period of ten years, the respondent No.1 has not even cared to place on record the copy of the Will let alone proving the same. Even otherwise, the learned lower Appellate Court has given no reasons whatsoever on the basis of which he framed issue No.1-B. Every omission of the party cannot be condoned under the garb of failure of justice. What surprises this Court is that while filing an appeal before the learned lower Appellate Court, the respondent No.1 did not assail the judgment and decree passed by the learned trial Court on this specific ground. Further, it was not even alleged that any prejudice has been caused to her due to non-framing of the issue of Will of late Smt. Dhauli or that she was depriving of leading any evidence for want of proper issue regarding the Will or had been taken by surprise as no issue of Will was framed. On the contrary, there is a categorical reference made by respondent No.1 where in his examination in chief (submitted by way of affidavit) with respect to the execution of the Will of Smt. Dhauli, but despite that the respondent No.1 did not choose to produce the Will or even a copy thereof. What further surprise me is the fact that even during the pendency of the Will, the respondent No.1 did not place on record the alleged Will. 34. In view of the aforesaid reasons, I find merit in these appeals and the same are allowed and the impugned order dated 13.1.2014 in FAO No. 63 of 2014 passed in Civil Appeal No. 36-S/13 of 2013 by the learned Additional District Judge, Solan and impugned order dated 13.1.2014 in FAO No. 70 of 2014 passed in Civil Appeal No. 26-S/13 of 2011 by learned Additional District Judge, Solan are quashed and set-aside, leaving the parties to bear their own costs.