Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1174 (RAJ)

Madan Lal @ Nanalal v. LRs of Dhapu Bai

2016-08-12

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This appeal under Order 43, Rule 1(u) CPC has been filed by the appellants-defendants aggrieved against judgment and decree dated 26.03.2015 passed by Additional District Judge No. 3, Chittorgarh, whereby, the appellate court has partly allowed the appeal filed by the respondents and has remanded back the suit to the trial court to decide the same issue-wise. 2. The respondents filed a suit for cancellation of registered release deed dated 11.10.2007, declaration and permanent injunction against the appellants, inter alia, with the averments that the land comprised in new Araji Nos. 222, 225 and 226 ad measuring 2.2800 hectare situated in village Netavalgarh Pachhali, which was recorded in the name of plaintiff – Dhapu Bai as successor of her real brother Mohan Lal, in which, she has ¼th share, the partition of the property has so far not taken place. It was claimed that defendants, who are brother and nephew of the plaintiff have fraudulently got release deed dated 11.10.2007, regarding property, executed in their favour, which was liable to be cancelled. Averments were made pertaining to the reasons for cancellation of the said release deed. 3. The written statement was filed by the defendants-appellants defending the release deed. 4. It was claimed that defendants, who are brother and nephew of the plaintiff have fraudulently got release deed dated 11.10.2007, regarding property, executed in their favour, which was liable to be cancelled. Averments were made pertaining to the reasons for cancellation of the said release deed. 3. The written statement was filed by the defendants-appellants defending the release deed. 4. Based on the averments of the parties, the trial court framed eleven issues, which read as under:- ^^1- vk;k xzke usrkoy x<+ ikNyh rglhy fpRrkSM+x<+ esa fLFkfr fookfnr vkjkth ¼uohu½ ua0 222] 225 ,oa 226 dqy fdrk 3 dqy jdck 2-28 gSDVj fLFkr gS] tks oknh;k ,oa mlds HkkbZ ca'khyky] HkkHkh Lo0 uanwckbZ o izfroknh la[;k&1 ds la;qDr [kkrs dh gS\ & oknh;k 2- vk;k oknh;k ewy iq:"k nyhpan dh iq=h gksus ls fookfnr vkjkth;kr esa oknh;k dk uke fojklr ls [kkrs ntZ gqvk] ftlls oknh;k dk 1@4 gd] fgLlk fufgr gS\& oknh;k 3- vk;k okn ds iSjk la[;k&3] 4] 5 esa of.kZr rF;ksa ds vuqlkj fnukad 11-10-2007 dks izfroknh la[;k&1] 2 us oknh;k ls /kks[kk dj fcuk crk;s] oknh;k ds 1@4 fgLls dk jftLVMZ gd R;kx izfroknh la[;k&1 ds gd esa djk;k] ftlls gd R;kx fujLr ;ksX; gS\ & oknh;k 4- vk;k izfroknh la[;k&1 us gd R;kx fnukad 11-10-2007 ds vk/kkj ij oknh;k ds 1@4 fgLls dk bardky la[;k&435 fnukad 05-11-2007 dks Lo;a ds uke ij djk;k] tks oknh;k ds gd] vf/kdkjksa ds eqdkcys fujLr ;ksX; gS\ & oknh;k 5- vk;k izfroknh la[;k&1 ds uke [kkrk [kqy tkus ls izfroknh la[;k&1] 2 feydj fookfnr vkjkth;kr esa fufgr oknh;k ds 1@4 fgLls dks tcju vU; yksxksa dks fodz;] jgu] csg] c['kh'k djus ij o tcju dCtk Nhuus ij mrk: gS ftlls oknh;k LFkkbZ fu"ks/kkKk fMdzh ikus dh gdnkj gS\ & oknh;k 6- vk;k oknh;k dk [kkrs esa uke eksguyky dh fojklr esa HkkbZ&cfgu gksus ds vk/kkj ij [kkrk ntZ gqvk gS\ &izfroknh la[;k&1] 2 7- vk;k oknh;k 95 o"kZ dh o`) efgyk ugha gksdj 80 o"kZ dh gS ftldk 1@4 fgLls ij dCtk ugha gS\& izfroknh la[;k&1] 2 8- vk;k ;g okn U;k;ky; ds Jo.kf/kdkj] {kS=kf/kdkj dk ugha gksdj jktLo U;k;ky; dk gS\ &izfroknh la[;k&1] 2 9- vk;k ;g okn iw.kZ U;k;'kqYd ij ugha gS\ &izfroknh la[;k&1] 2 10- vk;k izfroknh la[;k&1 us fookfnr Hkwfe dk jdck izfroknh la[;k&2 dks fnukad 08-10-2007 dks gh :å 4]50]000 esa fodz; dj dCtk ns fn;k izfroknh la[;k&2 us [kkrk [kqyok fy;k gS] rks bldk vlj D;k gS\ &izfroknh la[;k&1] 2 11- vuqrks"k\ & oknh;k** 5. Evidence was led by the parties. The trial court by its judgment and decree dated 07.01.2013 decided issue Nos. 1, 2 and 6 and issue Nos. 3 to 5 together. Qua issue Nos. 9 and 10, it was indicated that the said issues were not pressed by the defendants and based on its findings on the issues, the suit was dismissed. 6. Feeling aggrieved, the defendants filed first appeal. 7. The appellate court by the impugned judgment came to the conclusion that the trial court has decided issue Nos. 1, 2 and 6, 3 to 5 and 9 & 10 together, whereas, different issues should have been decided separately, as the issues were not related to each other but contradictory. It was also held that the trial court only noticed that issue Nos. 9 and 10 were not pressed, which is not in accordance with law and, consequently, set aside the judgment passed by the trial court and remanded back the matter while directing to decide the same issue-wise. 8. It is submitted by learned counsel for the appellants that the appellate court committed error in partly allowing the appeal and remanding the matter to the trial court. With reference to various issues, it was submitted that the issues were rightly decided together as not only the same were interconnected but were consequential only. It was further submitted that once the issues, burden of which was on the defendants and the same were not pressed, it cannot be said that the said not pressing was not in accordance with law and, therefore, the judgment impugned deserves to be quashed and set aside. 9. It was further submitted that in any case the evidence was available before the appellate court and the appellate court itself could have decided the issues on merits and, therefore, the judgment impugned deserves to be quashed and set aside. 10. Learned counsel for the respondents supported the judgment impugned. It was submitted that the appellate court was justified in remanding back the matter to the trial court as the trial court wrongly clubbed the issues while deciding the suit, which was not in accordance with law and, therefore, the judgment impugned does not call for any interference. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. A bare look at the issues famed by the trial court and the fact that issue Nos. 1, 2 and 6, issue Nos. 3, 4 and 5 were clubbed and decided together by the trial court reveals that while issue No. 1 pertained to the fact as to whether the disputed property is joint property of the plaintiff, her brother - Banshi Lal, sister-in-law Nandu Bai and defendant No. 1 – Madan Lal, the issue No. 2 pertained to as to whether the suit property was recorded in the name of the plaintiff on account of being heir of Dali Chand, her father and issue No. 6 pertained to the fact as to whether the land in question was recorded in the name of the plaintiff as successor of Mohan Lal. All the three issues pertained to the status, in which, the land was held by Smt. Dhapu Bai. The trial court was justified in deciding all the three issues together, inasmuch as, it was required to decide in what capacity the land in question was recorded in the name of Smt. Dhapu Bai. Though a comprehensive reading of the entire dispute reveals that the said aspect of the matter is wholly insignificant, inasmuch as, it is not in dispute between the parties that the land in question was in fact recorded in the name of Smt. Dhapu Bai, in whatever capacity either as heir of Dali Chand and/or as successor of her brother Mohan Lal. The crux of the matter appears to be as to whether the release deed executed by Smt. Dhapu Bai was liable to be cancelled for the reasons indicated in the plaint and, therefore, the fact that the trial court decided the three issues together cannot be said to be against law. 13. A look at issue Nos. 3 to 5 reveal that issue No. 3 was the basic issue pertaining to the validity of the release deed dated 11.10.2007, the issue Nos. 4 and 5 were merely consequential and, therefore, the said issues were rightly decided by the trial court together. 14. So far as issue Nos. 13. A look at issue Nos. 3 to 5 reveal that issue No. 3 was the basic issue pertaining to the validity of the release deed dated 11.10.2007, the issue Nos. 4 and 5 were merely consequential and, therefore, the said issues were rightly decided by the trial court together. 14. So far as issue Nos. 9 and 10 are concerned, the issue No. 9 pertains to the fact as to whether the plaint was on sufficient court fees and issue No. 10 pertained to the effect of the fact that the land in question had been transferred by defendant No. 1 to defendant No. 2. Once the issues were not pressed by the defendants, there was no occasion for the appellate court, while remanding the matter, to observe that the decision on the said issues was not in accordance with law. The provisions of law do not cast any burden on the court to decide the issue of sufficiency of court fees suo moto. Once the issue was not pressed, the same was end of the matter and the observations made by the appellate court are absolutely without jurisdiction. 15. In view of the above discussion, the judgment of the trial court dated 07.01.2013 cannot be faulted merely on account of the fact that issue Nos. 1, 2 and 6, issue Nos. 3, 4 and 5 and issue Nos. 9 and 10 were decided together by the trial court, which is the only ground on which the appeal has been accepted by the appellate court. It is made clear that this Court has only decided the aspect pertaining to the decision by the trial court on the issues together and has not examined the validity of the findings recorded by the trial court on the said issues. The validity of the findings based on the record of the case is yet to be examined by the appellate court. 16. Consequently, the appeal filed by the appellant is allowed, the judgment dated 26.03.2015 passed by the appellate court, whereby, the matter has been remanded back to the trial court is set aside, the Appeal No. 20/2014 is restored back before the appellate court and the appellate court is directed to decide the appeal on merits. The appellate court shall decide the appeal, uninfluenced by any of the observations made hereinbefore. The parties shall appear before the appellate court on 12.09.2016. The appellate court shall decide the appeal, uninfluenced by any of the observations made hereinbefore. The parties shall appear before the appellate court on 12.09.2016. No order as to costs.