Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 366 (UTT)

Mohd. Hashim v. Waheed

2015-07-22

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. Present second appeal has been preferred by the plaintiff/appellant for setting aside the judgment and decree dated 17.02.2014, passed by Addl. District Judge, Vikasnagar, District Dehradun, in Civil Appeal no. 126 of 2012, titled as Mohd. Hasim v. Waheed and others, and further to set aside the judgment and decree dated 01.05.2010, passed by Civil Judge (Sr. Div.), Vikasnagar, District Dehradun, in O.S. no. 260 of 2006, Mohd. Hasim v. Waheed and others. In other words, the plaintiff/appellant has made a prayer before this Court for decreeing his original suit no. 260 of 2006 in to to. 2. Plaintiff/appellant filed a civil suit no. 260 of 2006 against the defendants/respondents for a decree of permanent prohibitory injunction restraining the defendants from interfering in Khata no. 1155, Khasra no. 1388 admeasuring 6 biswa of land over which the houses and shops were constructed by the plaintiff in the year 1977. 3. In present second appeal, notices were issued to the respondents for filing objections on delay condonation application, but none turned up on behalf of said respondents, despite service of notices, upon them. On earlier occasions also, during the course of trial and during hearing of first appeal, none of the defendants/respondents appeared before the courts below. Only defendant no. 4 appeared before the trial court, who too did not participate in the subsequent proceedings and, therefore, the courts were left with no option but to proceed ex parte against the defendants/respondents. 4. After considering the evidence on record and after hearing learned counsel for the plaintiff, the suit was dismissed by learned Civil Judge (Sr. Div.), Vikasnagar, Dehradun, vide judgment and decree dated 01.05.2010. Aggrieved against the same, plaintiff preferred civil appeal no. 126 of 2012, which too was dismissed by learned Addl. District Judge, Vikasnagar, Dehradun vide judgment and decree dated 17.02.2014. Still aggrieved against the same, present second appeal has been preferred by the plaintiff/appellant. 5. Plaint case, in brief, is that the disputed land was recorded as abadi land of category (6)(2) in the revenue records of 1410 to 1415 fasli. The plaintiff is the owner-in-possession of 6 biswa of such land and the remaining 10 biswa land is with defendant no. 1. Plaintiff constructed shops and houses over such piece of land in the year 1977. The plaintiff is the owner-in-possession of 6 biswa of such land and the remaining 10 biswa land is with defendant no. 1. Plaintiff constructed shops and houses over such piece of land in the year 1977. Defendants started interfering in the same saying that they will make arrangement for Tazia procession over the same and also started digging on a portion of plaintiff's land. Plaintiff instituted a civil suit no. 583 of 2005, titled as Mohd. Hasim v. Waheed and others, which was later on dismissed as withdrawn with permission to the plaintiff to file fresh suit, vide order dated 04.04.2006, but still the defendants were threatening the plaintiff to encroach upon said land and hence the suit. 6. The trial court has observed in its judgment that under the garb of the decree of permanent prohibitory injunction, the plaintiff is trying to seek declaration of ownership over such piece of land. The trial court has also maintained that plaintiff's name nowhere figured in the revenue records. Trial court was also of the view that no sale deed etc. has been filed by the plaintiff so as to establish his ownership in possession over the suit property and, therefore, such a relief could not be granted to the plaintiff. Although the plaintiff has filed his affidavit in support of his case, but that nowhere establishes that he is owner-in- possession of the suit property. The suit was, accordingly, dismissed. 7. When an appeal was filed against the same, the lower appellate court, in its judgment narrated the plaint story. Plaintiff/appellant made an endorsement on the ordersheet of the lower appellate court on 30.03.2010 that he does not want to proceed against the legal representatives of defendant no. 4, who had earlier filed written statement in support of plaintiff's case. Learned lower appellate court was of the view that the affidavits filed on behalf of the plaintiff/appellant were contradictory in themselves. One affidavit was filed by the plaintiff/appellant on 28.06.2006 and another affidavit was filed on 09.04.2010. In both the affidavits, plaintiff has stated that the defendants assembled together on 11.12.2005 and started interfering in his abadi land. In Khasra and Khatauni, the land has been recorded as abadi land. It has not been recorded in the name of the plaintiff. Learned lower appellate court also referred to a report of Lekhpal (paper no. 38C-1), which indicated that Khasra no. In Khasra and Khatauni, the land has been recorded as abadi land. It has not been recorded in the name of the plaintiff. Learned lower appellate court also referred to a report of Lekhpal (paper no. 38C-1), which indicated that Khasra no. 1388 measuring 0.063 hectare is recorded as abadi land and khasra no. 1413 Kha measuring 0.283 hectare has been recorded as pathway in revenue records. Plaintiff/appellant did not file any document to show as to how he came into possession of the suit property. It goes without saying that in order to establish his case the plaintiff has to stand on his own legs. Lower appellate court, therefore, did not think it proper to interfere in the judgment and decree of the trial court and dismissed the appeal. 8. Learned counsel for the appellant submitted that no issue has been framed by the trial court. This court is of the opinion that when no written statement has been filed by the defendants (although defendant no. 4 filed written statement but in support of the plaintiff's case), necessity of framing issues did not arise. Order 14 CPC says that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In the instant case, material proposition of fact is although affirmed by the plaintiff, but has not been denied by the defendants or any of them. It also says that material proposition are those proposition 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. Since the pleadings of the parties were not at variance on material proposition of fact or law, therefore, necessity of framing of issues did not arise, as runs the language of Order 14, Rule 1 (1) and 2. Issues are to be framed with regard to only those pleadings which are asserted by one party and denied by the other. In the instant case, there was no denial on behalf of the defendants to the pleadings of the plaintiff. If an assertion made by plaintiff is not denied by the defendant, such assertion can be taken to have been accepted, by the latter and the necessity for the court to frame an issue upon the same does not arise. In the instant case, there was no denial on behalf of the defendants to the pleadings of the plaintiff. If an assertion made by plaintiff is not denied by the defendant, such assertion can be taken to have been accepted, by the latter and the necessity for the court to frame an issue upon the same does not arise. An issue comes to be framed, on the basis of the assertion made by one party, and the denial by the other. Sub Rule (6) of Order 14, Rule 01 says that 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. This Court, therefore, is not inclined to agree with such submission of learned counsel for the appellant that even in the absence of written statement the trial court was bound to frame the issues. It may also be noted here that there is concurrent findings of two courts below. The trial court has dismissed the suit of the plaintiff, even after proceeding ex parte against the defendants, and the lower appellate court has also dismissed the appeal even in the absence of the defendants/respondents. 9. Learned counsel for the appellant next submitted that the lower appellate court has not complied with the provisions of Order 41, Rule 31 of CPC, which says that the judgment of the appellate court shall state, among other things, the points for determination etc. The lower appellate court, in its judgment has not only stated the averments made in the plaint, the grounds taken up by the plaintiff/appellant in the first appeal, but has also discussed the arguments raised by learned counsel for the plaintiff/appellant. Learned lower appellate court has also discussed the case of the plaintiff with the support of some decisions which were referred to that Court on behalf of the plaintiff/appellant. The lower appellate court has proceeded parawise giving cogent reasons, as to how it is not inclined to interfere with the findings of the trial court. Although points of determination have not been encapsulated as yet, but the probable arguments and the actual arguments were taken care of by the lower appellate court in its judgment, which has also discussed the oral evidence in the form of affidavits as well as documentary evidence which has been filed on behalf of the plaintiff/appellant. Although points of determination have not been encapsulated as yet, but the probable arguments and the actual arguments were taken care of by the lower appellate court in its judgment, which has also discussed the oral evidence in the form of affidavits as well as documentary evidence which has been filed on behalf of the plaintiff/appellant. Order 41, Rule 31 of CPC says that the appellate court shall state the points for determination which the lower appellate court has done in its judgment, although the points of determination have not been framed as such. There is difference between the words `state' and `frame'. Under Order 14 the word `frame' has been used. Whereas issues are framed under Order 14 CPC, the points of determination are stated under Order 41, Rule 31 CPC. `Stated' means specify for consideration, whereas `frame' means formulate or devise the essentials (of pleadings). The lower appellate court has stated its own points for deciding the appeal. Hence there was compliance of Order 41, Rule 31 CPC by the lower appellate court. 10. Findings of the learned courts below are concurrent findings of fact which cannot be legally interferred by this Court in Second Appeal under the provisions of Section 100 of the Code of Civil Procedure. There is no procedural/legal defect in the judgments of the learned lower appellate court which could make the second appeal maintainable, especially when the learned lower appellate court has affirmed the judgment and decree of the trial court. There is no evidence on record to show that the plaintiff/appellant is in legal possession of the suit property. It will also not be out of context to mention here that the very objective of the plaintiff appears to be to seek a declaration of his ownership over the suit property in which State was a necessary party, which has not been arrayed in the instant case. 11. No substantial question of law, therefore, arises in the second appeal. The same is accordingly dismissed at the admission stage itself, even in the absence of the defendants/respondents. Appeal Dismissed.