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2014 DIGILAW 894 (HP)

Fulan Devi v. Savitri Devi

2014-07-14

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the impugned judgment and decree, rendered on 24.4.2001, by the learned District Judge, Bilaspur, H.P., in Civil Appeal No. 13 of 1994, whereby, the learned District Judge allowed the appeal preferred, by the respondent/plaintiff, whereby the suit of the plaintiff was decreed for possession of the suit land. 2. The instant appeal was admitted on 08.11.2002 on the substantial questions of law, existing at serial No.1 and 2 at page 5 of the paper book. However, during the course of arguments, the learned counsel appearing for the appellants submits that the additional substantial question of law which was framed by this Court while allowing CMP No. 534 of 2013, on 5.7.2013 and which exists, at, paragraph No.5 of the application, filed by the learned counsel for the appellants/applicants, hence, now comprises the sole preponderant substantial question of law. The same is extracted hereinbelow: 1. Whether the order of the trial Court closing the evidence of the defendant-appellant was justified and non-examination of the oral evidence has prejudiced the trial which has vitiated the findings and the case deserves to be remanded for affording an opportunity to the appellant for leading oral evidence? Substantial questions of law No.1. 3. Since for the reasons ascribed hereinbelow, this Court is of the view that the additional substantial question of law comprises, the solitary substantial question of law necessitating adjudication, besides, liable to be answered in favour of the appellants/defendants, sequeling, as well, as, necessitating the allowing of the appeal and remand of the case. Therefore, it is neither expedient nor deemed fit and appropriate by this Court to delve into or answer other substantial questions of law, when they are not, at, this stage answerable. The plaintiff suffered a decree of dismissal of his suit, before the learned Trial Court. In appeal, the plaintiff succeeded. The fulcrum of the defence of the defendant in the suit of the plaintiff for possession of the suit land, was his having acquired title to the suit land ensuing from efflux of the statutorily prescribed period of time. The learned first Appellate Court while reversing the decree of the trial Court, which had dismissed the suit of the plaintiff, has relied upon the documentary evidence existing on the file, disclosing the fact of the plaintiff/respondents to be owners in possession of the suit land. The learned first Appellate Court while reversing the decree of the trial Court, which had dismissed the suit of the plaintiff, has relied upon the documentary evidence existing on the file, disclosing the fact of the plaintiff/respondents to be owners in possession of the suit land. Such reliance by it, sequelled, its reversing the judgment and decree of the learned trial Court, which, dismissed the suit of the plaintiff for possession. However, the fulcrum of the defence of the defendants/appellants, rests on the plea of adverse possession. The first Appellate court on its delving into the evidence on record and, as such, having disinterred the record, concluded that the defence of the appellants/defendants to have acquired title qua the suit land ensuing from efflux of the statutorily prescribed period of time, was neither sustainable by the revenue record nor established by any cogent evidence apposite to it, it, having remained un-adduced by the defendants/appellants. Consequently, it reversed the findings of the learned trial Court. 4. The learned counsel appearing for the defendants/appellants has focused his submission on the illegality, irregularity and defect which exists, in, the order of the learned trial Court rendered, on, 21.12.1993 by which the evidence of the defendants, to, sustain their claim of theirs having acquired title to the suit land by way of adverse possession was untenably closed. Consequently, the said defect and irregularity in the order, affected the decision of the First Appellate Court, in as much, as, the learned first Appellate Court concluded that for want of evidence displaying the defendants/appellants to have become owners of the suit land by adverse possession, as such, the said plea was discardable. It sequelled the inference that the suit of the plaintiff for possession, was decreable. The “defect” has been contended by the learned counsel appearing for the appellants/defendants to the Court to be curable by way of an additional substantial question of law qua it being raisable, in, second appeal before this Court, as, envisaged by Section 105 of the CPC. While anchoring his submission on the statutory provisions, he submitted, that, even when there was a remedy of appeal or revision available to the appellants, to assail the orders rendered by any Court of law. Section 105 of the Code of Civil Procedure is extracted hereinbelow:- “105. While anchoring his submission on the statutory provisions, he submitted, that, even when there was a remedy of appeal or revision available to the appellants, to assail the orders rendered by any Court of law. Section 105 of the Code of Civil Procedure is extracted hereinbelow:- “105. Other orders.- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from , any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.” 5. Nonetheless, in the face of the fact that the learned trial Court, though, had directed the defendants/appellants, to, adduce evidence in support of its plea of adverse possession on 22.11.1993, on, which date the evidence of the defendants was present, yet the same could not be recorded owing to the fact of the Court time being over and, as such, the case was adjourned for the recording of the evidence of the defendants’ witnesses, by the learned trial Court to a subsequent date i.e. for 9.2.1993, whereafter it was subsequently and ultimately on 21.12.1993, the order affecting the decision of the learned first Appellate Court was rendered. Now, the substratum or essence and the import of the words “but where a decree is appealed, from, suffers any error, defect or irregularity in any order”, is, of utmost importance, more importantly the term “any order” existing therein acquires immense weight. The defect as purportedly existing in the order, closing the defendants evidence on 22.12.1993, has to be tested on the touch stone of, applying to it, the provisions engrafted in Section 105 of the CPC, the relevant part whereof is extracted hereinabove. Applying the said test to unearth any defect or irregularity, in, the orders of the learned trial Court in closing the defendants’ evidence on 22.12.1993, it is imperative to advert to the order of 22.11.1993, which recites the fact that on the said day, though, the defendants’ evidence was present, yet with the Court time being over, the recording of the evidence of the defendants’ evidence was deferred to 9.2.1993, which was a date preceding to the date on which the defendants’ evidence was present. However, yet the learned trial Court without taking to correct the orders revealing the said defect, ordered the matter be taken up, on, 10.12.1993. Even, on, 10.12.1993, the learned trial Court omitted to ascribe any reason for miss-listing of the case on that day. Subsequently, the matter was ordered to be taken, on, 21.12.1993 for adduction of defendants evidence. The reason as ascribed in the orders of 21.12.1993 rendered by the learned trial Court, for closing the evidence of the defendants, is, of the defendants having availed several opportunities and despite several opportunities having been afforded to them, theirs having omitted to adduce their evidence. However, a perusal of the order of 22nd November, 1993 reveals, that, on that date, the evidence of the defendants was present yet, the same could not be examined for reason that the court time was over. Obviously, then, on the said day, there was no attributable lapse to the defendants nor can it, hence, be said that the opportunity to adduce the defendants’ evidence was not availed by the defendants. A perusal of the order sheets recorded on subsequent dates on which the defendants’ evidence was to be adduced reveals sheer non application of mind, emerging from and evident from facts, of miss-recitals existing therein qua dates. As a sequel, then, the learned trial Court was in error in proceeding to close the evidence of the defendants on the score of their having been afforded several opportunities and theirs having remained un-availed. However, on analysis of the orders sheets, as done by this Court, hereinabove, rather, unfolds that the defendants’ evidence was ready for adduction, on the initial date, yet remained unrecorded owing to no lapse on the part of the defendants. No tenable subsequent opportunity appears to have been afforded to the defendants. No subsequent opportunities appear to have been afforded to the defendants, as, the order sheets subsequent, to, 22.11.1993 portray defects, inaccuracies and shortcomings, which orders do not don the garb of validity and tenability, in as much, as, theirs displaying the affording of opportunities to the defendants. The order sheets of the learned trial Court as referred to hereinabove have resulted in the defendants having been deprived of or their being prohibited to contest, for, untenable reasons and for no short comings and lapses on their part, the claim of the plaintiff. The order sheets of the learned trial Court as referred to hereinabove have resulted in the defendants having been deprived of or their being prohibited to contest, for, untenable reasons and for no short comings and lapses on their part, the claim of the plaintiff. Rather as ordained by Section 105 of the CPC, the order sheets as referred hereinabove and existing on the file of the trial Court while being imbued with illegality or defect, have led the learned first Appellate Court, to, pronounce a judgment and decree against the defendants, for, theirs having not led evidence, to sustain the plea of their having acquired title of the suit land by way of adverse possession, which plea having remained unproved for want of evidence, which evidence of the defendants was rather closed by a defective order, now, vest a power in this Court to permit the defendants/appellants to frame an additional substantial question of law, which was tenably framed and for the reasons hereinabove necessitates its being answered in favour of the defendants/appellants and against the plaintiff/respondent. 6. For reiteration, obviously, then, for such defects or irregularities, gripping the order of the learned trial Court and consequently, its, benumbing the adduction of evidence by the defendants/ appellants before the learned first Appellate Court, it led the first Appellate Court, to, in the face of its untenable denial, conclude that the defence of the defendants had remained un-established, hence, the suit of the plaintiff/respondent ought to succeed. 7. Even, though the learned counsel appearing for the plaintiff/respondent has contended that the defendants/appellants omitted to file appropriate proceedings before the appropriate forum for assailing the defect in the aforesaid orders, as such, the omission on their part, constitute, estoppel, as well, as, acquiescence. However, in the face of the specific statutory provisions engrafted in Section 105 of the Code of Civil Procedure, extracted hereinabove, vesting a right in any party aggrieved by any error or defect or irregularity exiting in any order. However, in the face of the specific statutory provisions engrafted in Section 105 of the Code of Civil Procedure, extracted hereinabove, vesting a right in any party aggrieved by any error or defect or irregularity exiting in any order. Obviously, given the width, scope and amplitude of the aforesaid provisions, the error, defect or irregularity, in, the orders, by, which the adduction of evidence by the defendants, to, sustain theirs plea of having theirs become owner of the suit land by way of adverse possession, has been closed by the learned trial Court, prodding, for, the reasons as aforesaid, accorded by the learned first Appellate court, to decree the suit of the plaintiff for possession, hence, it had affected its decision, rendering it to be now agitable in the manner as done. 8. In sequel, given the fact that the frameable substantial question of law which has come to be answered in favour of the defendants, obviously, with the statutory provisions inhering in the defendants/appellants to convey by way of substantial question of law, the defect in the orders referred to hereinabove, rendered by the learned trial Court, which defect has been concluded by this Court to have affected the decision of the learned first Appellate Court. Consequently, with statutory provisions vesting a right to the extent aforesaid in the defendants, naturally then, the plaintiff is estopped to raise the plea of estoppel and acquiescence, arising from the non agitation by the defendants/appellants before the appropriate form, qua the tenability of the orders of the learned trial Court, in, closing the evidence of the defendants. Rather, it is held that the specific statutory provisions engrafted, in, Section 105 negate and render nugatory, such a submission, hence, as they constitute an exception to the general principles of estoppel and acquiescence, which, in the absence of statutory provisions, would may have arisen. Accordingly, the aforesaid substantial question of law, is, answered in favour of the defendants/appellants and against the plaintiff/respondent. 9. In aftermath, the appeal is allowed. In result, the matter is remanded back to the Court of first instance to re-record the evidence of the defendants/appellants on issue No.5, qua theirs having become owner of the suit land by way of adverse possession. It is also made clear that the plaintiff/appellant be also granted opportunity to lead evidence in rebuttal. In aftermath, the appeal is allowed. In result, the matter is remanded back to the Court of first instance to re-record the evidence of the defendants/appellants on issue No.5, qua theirs having become owner of the suit land by way of adverse possession. It is also made clear that the plaintiff/appellant be also granted opportunity to lead evidence in rebuttal. The parties are directed to appear before the learned trial Court on 22.8.2014. The learned trial Court is directed to conclude the trial on the issue aforesaid, as also, to render a decision on issue No.5, within three months thereafter. Records be sent back forthwith.