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2016 DIGILAW 118 (HP)

HUSSAIN MOHAMMED S/O NOOR MOHAMMED v. GURDAS

2016-02-25

P.S.RANA

body2016
ORDER : 1. Present petition is filed under Article 227 of the Constitution of India against the order dated 20.2.2015 passed by learned Additional District Judge (II), Circuit Court at Amb, District Una, H.P. Brief facts of the case: 2. Plaintiff Gurdas filed suit for declaration to the effect that plaintiff is exclusive owner in possession of the land measuring 0-24-27 hectares comprised in Khewat No. 14 min, Khatauni No. 48min, Khasra Nos. 398, 399, 400 to 402, 404 and 405 as recorded in the Jamabandi for the year 1995-96 situated in Mauza Kotla, Tehsil Amb, District Una, H.P. Plaintiff sought declaration that the entry appearing in the name of defendants in the column of ownership and cultivation showing them to be exclusive owner in possession of the suit land is wrong, illegal, void ab-initio and has no effect on the right, title or interest of the plaintiff. The plaintiff also sought declaration that the defendants be restrained from causing any sort of interference i.e. changing the nature and character and cutting and removing the trees and from alienating the suit land in any manner. In alterative the plaintiff sought relief of possession also. 3. Per contra written statement filed on behalf of the defendants pleaded therein that the suit is not maintainable and plaintiff is estopped by his act and conduct to file the present suit. It is pleaded that suit is not filed within time. It is pleaded that plaintiff has no cause of action and locus-standi to file the present suit. It is pleaded that jurisdiction of the Civil Court is barred. It is pleaded that the suit land is coming in possession of the defendants since long since the time of their ancestors and it is pleaded that the ancestors of defendants were non-occupancy tenants. Prayer for dismissal of the suit sought. 4. As per pleadings of the parties learned trial Court framed followings issues on dated 2011.1999 and 28.7.2010: 1. Whether the plaintiff is exclusive owner in possession of the suit land, as alleged? OPP. 2. Whether entry in favour of defendants in the revenue record showing them as exclusive owners in possession of the suit land is wrong and illegal, as alleged? OPP. 3. Whether plaintiff is entitled to the relief of permanent prohibitory injunction? OPP. 4. Whether plaintiff is entitled to the alternative relief of possession of the suit land? OPP. 4A. OPP. 2. Whether entry in favour of defendants in the revenue record showing them as exclusive owners in possession of the suit land is wrong and illegal, as alleged? OPP. 3. Whether plaintiff is entitled to the relief of permanent prohibitory injunction? OPP. 4. Whether plaintiff is entitled to the alternative relief of possession of the suit land? OPP. 4A. Whether defendants are in settled possession of the suit land, as alleged? OPD. 5. Whether suit is not maintainable? OPD. 6. Whether plaintiff is estopped by his act and conduct to file this suit? OPD. 7. Whether suit is within time? OPP. 8. Whether plaintiff has no cause of action? OPD. 9. Whether the jurisdiction of this Court is barred, as alleged? OPD. 10. Relief. 5. Learned trial Court decided issues Nos. 1 to 4 in negative. Learned trial Court decided issues Nos. 4A and 5 in affirmative. Learned trial Court decided issue No. 7 in negative. Learned trial Court decided issue No. 8 in affirmative and learned trial Court held issue No. 6 not pressed. Learned trial Court dismissed the suit filed by the plaintiff. 6. Feeling aggrieved against the judgment and decree passed by learned trial Court dated 19th August, 2010 plaintiff Gurdas filed appeal RBT No. 71/2013/2010. Learned first appellate Court on dated 20th February, 2015 framed following additional issues: 1(a) Whether plaintiff was tenant at will on payment of rent in respect of the suit land, as alleged. OPP. 1(b) Whether predecessor-in-interest of the defendants was inducted as non-occupancy tenant on payment of rent qua the suit land, as alleged? OPP. 5(a) Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD. 7. Learned first appellate Court directed the trial Court to give findings in accordance with law and thereafter return the findings to the appellate Court on or before 31.08.2015. 8. Feeling aggrieved against the order dated 20th February 2015 of learned first appellate Court present petition under Article 227 of the Constitution of India is filed. 9. Court heard learned Advocates appearing on behalf of the parties and Court also perused the entire record carefully. 10. Following points arise for determination in the present petition: 1. Whether petition filed under Article 227 of the Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Relief. Findings upon point No. 1 with reasons: 11. 10. Following points arise for determination in the present petition: 1. Whether petition filed under Article 227 of the Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Relief. Findings upon point No. 1 with reasons: 11. It is well settled law that issues are framed when material proposition of fact or law is affirmed by the one party and denied by the other. It is well settled law that issues are of two kinds. Issues of fact and issues of law. It is also well settled law that issues be framed with regard to only those pleadings which are asserted by one party and denied by the other See Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal Bahri, AIR 1994 HP 27 . It is also well settled law that non-framing of an important issue is not fatal if it does not prejudice any of the litigants and if both parties were aware of the issues and led evidence See Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 Apex Court 884. It is well settled law that Court is legally competent to frame issues which are material for the just decision of the case or for pronouncement of the judgment or for any substantial cause. See Bhairab Chandra Nandan v. Ranadhir Chandra Dutta AIR 1988 Supreme Court 396. See Kaniz Fatima v. Shah Naim Ashraf, AIR 1983 Allahabad 450(DB). Learned first appellate Court has specifically mentioned in his order dated 20th February, 2015 that issues Nos. 1(a), 1(b) and 5(a) are material for adjudication of the present appeal. 12. As per Order 41, Rule 28 Code of Civil Procedure 1908 whenever an additional evidence is allowed by the appellate Court then the appellate Court can take the additional evidence himself or direct the Court against whose decree the appeal is preferred to take additional evidence or can direct any other Subordinate Court to take additional evidence and send it to the appellate Court. As per Order 41, Rule 29 of Code of Civil Procedure Appellate Court would specify the points upon which evidence would be confined. 13. Present Civil Suit No. 234 of 1998 was instituted on 24.11.1998 and required expeditious disposal. As per Order 41, Rule 29 of Code of Civil Procedure Appellate Court would specify the points upon which evidence would be confined. 13. Present Civil Suit No. 234 of 1998 was instituted on 24.11.1998 and required expeditious disposal. Court is of the opinion that keeping in view the fact that present suit was instituted in the year 1998 before the learned trial Court and keeping in view the fact that party has a legal right of expeditious disposal of the case it is expedient in the ends of justice that the evidence upon additional issues framed by the first appellate Court be recorded before learned first appellate Court in the ends of justice. Recording of evidence by learned first appellate Court is essential in the present petition in order to dispose of the appeal expeditiously and in view of the fact that additional issues framed by learned first appellate Court suo-motu without any application filed by the parties before learned trial Court or before learned first appellate Court. Learned trial Court did not frame specific issue of tenancy as framed by learned first appellate Court as per pleadings of the parties placed on record. Plaintiff has asserted right of tenancy over the suit land. Hence it is held that learned first appellate Court had not committed any illegality by way of framing additional issues Nos. 1(a) and 1(b) in appeal. It is further held that learned first appellate Court also did not commit any illegality by way of framing additional issue No. 5(a) because there is specific positive pleadings on behalf of the defendants that civil suit is bad for non-joinder of necessary parties. Point No. 1 is answered accordingly. Point No. 2 (Relief) 14. In view of findings on point No. 1 above it is ordered that evidence will be recorded by the learned first appellate Court himself. The order of learned first appellate Court is modified to this extent only. It is further ordered that learned first appellate Court will give maximum two chances to each of the parties to produce their evidence in respect of the issues to be proved by the respective parties as the appeal is pending since 2010 and is old targeted appeal. Learned first appellate Court will dispose of the appeal within three months after receipt of the file. Learned first appellate Court will dispose of the appeal within three months after receipt of the file. File of learned first appellate Court and file of learned trial Court be immediately transmitted to learned first appellate Court along with certified copy of order. Observations will not effect the merits of the case in any manner and will be strictly confined for disposal of present petition. No orders as to costs. CMPMO No. 81 of 2015 is disposed of. Pending miscellaneous application(s) if any also stands disposed of.