Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 140 (JK)

Sudesh Kumar v. Ajit Raj

2015-03-31

JANAK RAJ KOTWAL

body2015
JUDGMENT : Janak Raj Kotwal, J. 1. This Revision Petition is directed against order dated 02.01.2015 whereby the District Judge, Samba has rejected petitioner-defendant No. 1's application for framing of an additional issue in a suit for partition filed by respondent (plaintiff). Heard Mr. Basit Manzoor Keng, learned counsel for the petitioner and Mr. B.S. Salathia, learned Senior Advocate, for the respondent. 2. Petitioner (defendant No. 1) and defendant Nos. 2 & 3 are the three sons of one Kheru Ram. Respondent (plaintiff) is a son of the petitioner. The suit land measuring 51 kanals 3 marlas comprised in various Khasra Numbers was allotted to Kheru Ram being a displaced person. After enactment of the Jammu and Kashmir Agrarian Reforms Act, 1976, the suit land was mutated in terms of Section 3A thereof in favour of Kheru Ram. After the death of Kheru Ram, mutation of inheritance qua the suit land has been attested in favour of his three sons, that is, the defendants and the land is now in their cultivating possession. To this extent case is admitted as per the pleadings of the parties. 3. Respondent (plaintiff) has filed suit for partition of the aforementioned land and a house constructed in it. On reading of the plaint it is evident that respondent claims his share in that portion of the aforementioned property which after the death of Kheru Ram has fallen to the share of his father, Sudesh Kumar (defendant No. 1). Respondent-plaintiffs case in a nut-shell is that he and the defendants are the legal heirs of deceased Kheru Ram and being a grandson of Kheru Ram, he is a co-owner/co-sharer in the suit property. 4. Petitioner (defendant No. 1) in his written statement has opposed the suit inter alia but mainly on the ground that respondent (plaintiff) is not entitled to any share in the aforementioned property during petitioner's life time and further that respondent is not a co-sharer with him in the said property. In regard to the house, petitioner has contended that the same has been constructed by him and respondent cannot claim any share in it. 5. The two issues framed by the learned trial court in the suit read: "1) Whether the suit property is joint and undivided between the parties? OPP 2) Relief? OP on Parties." 6. In regard to the house, petitioner has contended that the same has been constructed by him and respondent cannot claim any share in it. 5. The two issues framed by the learned trial court in the suit read: "1) Whether the suit property is joint and undivided between the parties? OPP 2) Relief? OP on Parties." 6. Another issue in regard to jurisdiction of the trial court was framed as additional issue 1(a) which, however, has been decided in favour of the respondent. 7. Petitioner (defendant No. 1) filed an application before the trial court under Order 14 Rule 5 CPC for faming of an additional issue relating to maintainability of the suit under law and the issue to be taken as a preliminary issue. In moving this application, petitioner pointed out that on the basis of the pleadings of the parties it is clear that question of maintainability of the suit should have been framed. In support of his application, petitioner referred to Order 14 Rule 3 CPC. 8. Respondent (plaintiff) as per the impugned order opposed this application contending that the same was misconceived and has been filed with the intention to thwart the course of justice. Respondent seems to have contended that 'it has not been spelled out in the written statement as to who are the necessary parties in absence of which the suit is not maintainable.' Learned trial court rejected the application by the impugned order taking the view that in the preliminary objections taken in the written statement it has been pleaded by the petitioner (defendant No. 1) that 'suit is not maintainable on account of non-joinder of necessary parties' but the objection raised by the petitioner is quite evasive 'as it has not been spelled out in the written statement as to who are necessary parties' to the suit in whose absence the Court cannot pass an effective decree at all. 9. Learned counsel for the petitioner argued briefly that suit for partition is not maintainable because the respondent neither is a co-sharer in the allotted land nor can he claim partition in the life time of his father. Per contra, learned counsel for the respondent argued that the petitioner has inherited the suit property from his father so the respondent has a birth right of share in the said property. 10. Per contra, learned counsel for the respondent argued that the petitioner has inherited the suit property from his father so the respondent has a birth right of share in the said property. 10. On its bare reading the impugned order reveals that the learned Judge of the trial court misdirected himself in dealing with the prayer of the petitioner for framing of the additional issue in its right perspective. Learned trial court evidently seems to have assumed it to be a prayer for framing issue in regard to the maintainability of suit simply on the basis of the plea of non-joinder of the necessary parties raised as a preliminary objection in the written statement. 11. Petitioner, as the application filed by him would show, had sought framing of issue in regard to the maintainability of the suit on the basis of the pleadings in general. Learned trial court was supposed to have accorded consideration to the application in light of the pleadings on the whole and had that been done the necessity of framing issue relating to maintainability of suit for partition might have been felt by the court. 12. It needs to be restated here, though at the cost of repetition, that the social relationship between the parties and their status vis a vis the suit property is not disputed. Land was allotted in favour of the father of the defendants, late Sh. Kheru Ram, who was a displaced person and mutation in terms of Section 3A of the Agrarian Reforms Act, 1976 was attested in his favour. After Kheru Ram's death, mutation of inheritance has been attested in favour of his three sons, that is, the defendants, who are in cultivating possession thereof. It is also admitted ground of both the sides that respondent (plaintiff) is a son of the petitioner (defendant No. 1). It is averred in the written statement that the petitioner is involved in matrimonial dispute with the mother of the respondent and respondent and his mother are now residing in the parental house of the later. 13. It is also admitted ground of both the sides that respondent (plaintiff) is a son of the petitioner (defendant No. 1). It is averred in the written statement that the petitioner is involved in matrimonial dispute with the mother of the respondent and respondent and his mother are now residing in the parental house of the later. 13. The basic question, which has been raised by the petitioner-defendant No. 1 more than once in his written statement, arising for consideration before the trial court would be as to whether the respondent-plaintiff is a co-sharer in the suit property and entitled to a share in that portion of the suit property which after the death of Kheru Ram has fallen to the share of respondent's father. This question can be determined on the basis of admitted position emerging from the pleadings. Determination of this question would in turn determine the further course of action to be adopted in the suit. Only if the respondent is in a position to show that he is entitled to a share in the suit property in the life time of his father, question of partition can be taken up. To say otherwise, maintainability of the suit for partition would be governed by the determination of question raised by petitioner (defendant No. 1). 14. As a specific plea in regard to respondent's (plaintiff's) entitlement to a share was raised in the written statement, an issue in this regard should have been framed. If the issue was not initially framed, the learned trial court should have availed the opportunity of re-examining the pleadings on the basis of application moved by the petitioner instead of taking superficial view in deciding the application as it seems to have taken. 15. It needs to be stated, briefly, that an issue in a suit arises when a material proposition of fact or of law is affirmed by the one party and denied by the other. Material propositions are those points of fact or of law which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Every point of law or of fact which is affirmed by one party and denied by the other shall form subject of a distinct issue. An issue may, therefore, involve a question of law or a question of fact. Every point of law or of fact which is affirmed by one party and denied by the other shall form subject of a distinct issue. An issue may, therefore, involve a question of law or a question of fact. However, same issue may involve a mixed question of law and fact, that is, question of law may be based on a question of fact. It may be stated that through their pleadings and documents parties place before the court their case and the area of dispute between them in their own way. The purpose of framing issues is to shorten the area of dispute and pinpoint the points of law and facts required to be determined in the course of trial for right decision of the case. 16. Rule 1(5) of Order 14 CPC casts a duty on the trial court to read the pleadings and ascertain upon what material propositions of fact or of law the parties are at variance and to frame and record the issues on which the right decision of the case appears to depend. In order to do so, Rule 2 of Order 10 empowers the trial court to record statements of the parties. Contextually, Rule 3 of Order 14 provides that issues are to be framed on the basis of contentions in the pleadings, statement of parties and contents of the documents produced by the parties. 17. What is intended to be emphasized is that framing of issues is an important duty cast on the trial judge and should be exercised meticulously and with seriousness. Experience has shown that well framed issues shorten the area of dispute and make it easy for the parties to lead evidence and for the court to address the dispute between the parties. It helps in speedy trial of a case. 18. In this case the respondent-plaintiff claims to be a co-sharer in the suit property. The plea taken by the petitioner-defendant is that respondent is not a co-sharer and not entitled to share in the suit property in the life time of his father given that the property had been allotted to the grandfather of the plaintiff. This plea is the main plank of his defence, which cannot be ignored and calls for determination before proceeding ahead. This plea is the main plank of his defence, which cannot be ignored and calls for determination before proceeding ahead. Learned trial court has, therefore, fallen into error by ignoring this important plea, firstly, while framing the issues initially and secondly, while according consideration to petitioner's application for framing of additional issue. 19. Even in framing issue No. 1 (supra) in its present form, learned trial court seems to have acted casually because it should have been given a serious thought as to whether such an issue is required in face of admitted position between the parties. However, having said so, since framing of this issue is not questioned here, I would not pass any order in this regard, leaving it open for the trial court to look into the necessity of such an issue after deciding the question of law raised by the defendant. 20. Viewed thus, impugned order is set aside and following additional issue, to be numbered as 1(b), is framed: "1(b): Is the plaintiff a co-sharer and entitled to share in the suit property sought to be partitioned in the life time of his father? OPP" 21. Learned trial court shall forthwith return finding on issue No. 1 (b) and proceed ahead accordingly. 22. Petitioner shall produce a copy of this order in the learned trial court. Disposed of.