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2016 DIGILAW 1595 (HP)

Bharat Singh v. Gian Chand

2016-08-04

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment, dated 31.8.2012, rendered by learned Additional District Judge, Sirmaur at Nahan, in Civil Appeal No. 2-N/13 of 2011. 2 The key facts necessary for the adjudication of the appeal are that the respondents/plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) have filed a suit for possession against appellants/defendants No.1 to 3, Ran Singh (since deceased and represented by appellants No.4 to 10) and 11 (hereinafter referred to as the "defendants" for convenience sake). According to the plaintiffs, they are owners of the landed property bearing Khata No.17/18, Khatauni No. 31, Khasra No.706/750, measuring 17-3 bighas as per jamabandi for the year 1998-99, situated in Village Thana Kashoga, Tehsil Nahan, District Sirmaur, H.P. They had purchased this land vide sale deed No. 196, dated 27.12.1986. The possession of the defendants over the suit land is illegal and unauthorized. Earlier, the plaintiffs had filed a suit for permanent injunction against defendants No. 1, 3 and 4 (Ran Singh) along with their counterparts/predecessors, Chuhar Singh, s/o Sh. Budh Singh and Sadi Ram, s/o Sh. Mansa Ram. The parties had agreed to appoint a Local Commissioner for demarcation. However, the matter was compromised. According to the compromise, landed property of Khasra No.706/650/1/1/1 measuring 4-15 bighas was to be given to the defendants and in lieu thereof, the landed property measuring 4-15 bighas comprising in Khasra No.713/2/1 was to be given to the plaintiffs. The compromise could not be acted upon by the parties on the spot because other owners of surrounding area of Khasra No.713/2/1 had started claiming a big chunk of that land to be their after getting demarcation etc. Land bearing Khasra No.713/2/1 was mainly a 'Dhang' in which no cultivation was possible. The plaintiffs were not in a position to get the property of the same nature and value in exchange which they were going to give to the then defendants. The compromise was rescinded by the parties. Therefore, the said compromise and decree are illegal, fraudulent and void and they are not bound by the same. It is under these circumstances, the suit was filed. 3. The defendants have contested the suit. According to them, the suit is time barred and the plaintiffs are estopped from challenging the compromise decree by their act and conduct. The plaintiffs have no cause of action to file the suit. It is under these circumstances, the suit was filed. 3. The defendants have contested the suit. According to them, the suit is time barred and the plaintiffs are estopped from challenging the compromise decree by their act and conduct. The plaintiffs have no cause of action to file the suit. It is averred on merits that the plaintiffs are not owners of the land bearing Khasra No.706/650/1, measuring 1-6 bighas and Khasra No.706/650/2 measuring 2-6 bighas and Khasra No.760/650/4, measuring 14 biswas and this property is owned and possessed by the defendants and one Chuhar Singh. The plaintiffs have no right, title or interest over these khasra numbers. A suit was instituted by the plaintiffs, which came to be compromised and the compromise decree was passed by the court and now the same is binding on all the concerned including the plaintiffs. The land denoted by Khasra No.706/650/1/1/1 measuring 4-15 bighas is owned and possessed by the defendants and Chuhar Singh and the land denoted by Khasra No.713/2/1 measuring 4-15 bighas is owned and possessed by the plaintiffs as shown in the tatimas. The compromise decree was passed with the consent and knowledge of the parties. 4. The replication was filed. The learned trial court framed the issues on 5.9.2007 and dismissed the suit vide judgment and decree dated 19.9.2011. The plaintiffs feeling aggrieved with the judgment and decree dated 19.9.2011 preferred an appeal before the learned first appellate court, who allowed the same vide impugned judgment dated 31.8.2012 and set aside the judgment and decree dated 19.9.2011 and remanded the suit to the learned trial court with a direction to afford an opportunity to the plaintiffs to lead evidence on newly framed issue No.1-A and take down the evidence of defendants in rebuttal and then decide the suit afresh as per law. Hence, this appeal. 5. Mr. Karan Singh Kanwar, Advocate, has supported the judgment and decree dated 19.9.2011 passed by the learned trial court. 6. Mr. Bimal Gupta, Senior Advocate, has supported the impugned judgment dated 31.8.2012. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. Hence, this appeal. 5. Mr. Karan Singh Kanwar, Advocate, has supported the judgment and decree dated 19.9.2011 passed by the learned trial court. 6. Mr. Bimal Gupta, Senior Advocate, has supported the impugned judgment dated 31.8.2012. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. The plaintiffs had instituted Civil Suit No.125/1 of 1992 against one Chuhar Singh, Salinder Singh, Bharat Singh, Sadi Ram and Ran Singh for permanent injunction restraining them not to interfere with the land comprised in Khata Khatauni No.1 min/3, bearing Khasra No.706/650, measuring 17-3 Bighas. The parties arrived at compromise on 30.12.1992, Ext. PW1/C. Statements of Chuhar Singh, Ext.PW8/A and Gian Chand, Ext.D1 were also recorded separately by the then learned Senior Sub Judge, Sirmaur at Nahan on 30.12.1992. On the basis of the statements of Chuhar Singh, Ext.PW8/A, Gian Chand, Ext.D1 and compromise, Ext.PW1/C, the then Senior Sub Judge, Sirmaur passed the order dated 30.12.1992, Ext.PW/B, which reads as under:- "Today parties have arrived at a compromise. Statements of parties recorded. Written compromise, Ext.PA filed. In view of the compromise arrived at between the parties, statements of parties recorded and per terms of the compromise, the suit of the plaintiff is decreed per separate judgment. Decree sheet be prepared. File after completion be consigned to record room. It took 30 minutes." 9. Copy of the judgment and decree rendered by the then Sub Judge, Sirmaur in C.S. No.125/1 of 1992 is Ext. D2 and Ext. D3 respectively. According to the decree, the plaintiffs were declared owners in possession of Khasra No.713/2/1 measuring 4 bighas 15 biswas and the defendants were declared owners in possession of Khasra No.706/650/1/1/1 measuring 4 bighas 15 biswas, situated in Village Thana Kashoga, as entered in jamabandi for the year 1988-89, Ext.PC. According to the averments made in the plaint, the compromise and decree dated 30.12.1992 were illegal, fraudulent and void and the plaintiffs were not bound by the same. In the written statement filed by the defendants, it was averred that the compromise was actually and completely acted upon by exchanging the land. However, fact of the matter is that in the relief clause, the plaintiffs have not sought for setting aside the judgment and decree dated 30.12.1992 rendered in C.S. No.125/1 of 92. 10. In the written statement filed by the defendants, it was averred that the compromise was actually and completely acted upon by exchanging the land. However, fact of the matter is that in the relief clause, the plaintiffs have not sought for setting aside the judgment and decree dated 30.12.1992 rendered in C.S. No.125/1 of 92. 10. One of the plaintiffs, Gian Chand, has appeared as PW1 and led his evidence by filing an affidavit, Ext.PW1/A. According to him, the possession of the defendants over the suit land was totally illegal and forcible and they took the possession of the suit land in the month of December, 2005. In earlier suit filed against the plaintiffs, the parties had agreed to exchange their respective properties to the extent of 4-15 bighas. It was done mutually on 30.12.1992 in the presence of Kewal Ram and Patwari Jai Gopal. The defendants and other co-sharers had rescinded the compromise on 15.4.1993. The recitals in the compromise regarding delivery of the possession were wrong and the defendants had illegally and forcibly encroached upon an area to the extent of 4-6 bighas. However, in his cross-examination, he has categorically admitted that during demarcation, plaintiffs, defendants and Chuhar Singh had agreed to accept the land through compromise on the basis of which, judgment and decree Ext. D2 and Ext. D3 were passed. He has admitted that no execution of decree had been filed by them. The witness Kewal Ram is his brother-in-law. He has further admitted that on 25.6.1993, mutation of exchange was rejected and from 25.6.1993 to 2.9.2006, no efforts qua execution of the exchange were taken. He has admitted his statement qua exchange, Ext.D1 to be correct. 11. PW2, Deepender Singh, has proved on record documents, Ext. PW2/A and Ext. PW2/B. 12. PW3, Virender Singh, has proved on record plaint Ext. PW3/A and written statement, Ext.PW3/B in Civil Suit No.125/1 of 1992. 13. PW5, Kewal Ram has led his evidence by filing an affidavit, Ext. PW5/A. According to him, Chuhar Singh and the defendants had disclosed that they were going to give their land bearing Khasra No.713/2/1 in north side as per their subsequent agreement to the plaintiffs, in exchange, in lieu of land bearing Khasra No.706/650/1/1/1. The land of the defendants was sloppy. PW5/A. According to him, Chuhar Singh and the defendants had disclosed that they were going to give their land bearing Khasra No.713/2/1 in north side as per their subsequent agreement to the plaintiffs, in exchange, in lieu of land bearing Khasra No.706/650/1/1/1. The land of the defendants was sloppy. No exchange had been acted upon to his knowledge because of recession of agreement of exchange by the parties on 15.4.1993 having taken place in his presence and one Ramesh. 14. PW6, Ramesh Chand, has also led his evidence by way of filing an affidavit, Ext. PW6/A. According to him, the defendants had encroached upon the suit land in the month of December, 2005. Prior to December, 2015, the suit land remained in cultivating possession of the plaintiffs. 15. PW7, Mohd. Ramzan, has also led his evidence by filing an affidavit, Ext. PW7/A. According to him, he was working as Kanungo in the year 1994. He had checked the tatima prepared by the Patwari, Thana Kashoga and he noticed that area of Khasra No.706/650/1/1/1 was 5-2 bighas, instead of 4-15 bighas, whereas the area of Khasra No.713/2/1 was 4-6 bighas instead of 4-15 bighas. In his cross-examination, he has specifically admitted that neither he had visited the spot nor the land was measured by him. 16. PW8, Narender Gupta, has proved on record statements of Chuhar Singh, Ext. PW8/A and Gian Chand, Ext. D1, judgment, Ext D2 and decree, Ext. D3. in C.S. No.125/1 of 1992 and Tatima, Ext.PW7/B. 17. PW9, Balbir Garg, has deposed that he was working as Naib Tehsildar Dadahu in the year 2006. He has admitted that in case of exchange, possession of other parties is not called encroachment and the plaintiffs during demarcation had not disclosed about the decree of exchange. 18. One of the defendants, Bharat Singh, stepped into the witness box as DW1 and tendered his affidavit in evidence. According to him, Khasra No.706/650/1 measuring 1-6 bighas, Khasra No.706/650/2 measuring 2-6 bighas and Khasra No.706/650/4 measuring 14 biswas are in the ownership and possession of the defendants. The plaintiffs have no concern with the land measuring 4-15 bighas. The plaintiff had filed a Civil Suit No.125/1 of 1992, titled Gian Chand v. Chuhar Singh against them in the Court, in which compromise decree was passed on 30.12.1992. The plaintiffs have no concern with the land measuring 4-15 bighas. The plaintiff had filed a Civil Suit No.125/1 of 1992, titled Gian Chand v. Chuhar Singh against them in the Court, in which compromise decree was passed on 30.12.1992. According to the compromise decree, land comprised in Khasra No.706/650/1/1/1, measuring 4-15 bighas was given to them in exchange and land comprised in Khasra No.713/2/1 measuring 4-15 bighas was given to the plaintiffs. The mutation of exchange was entered at the instance of Chuhar Singh and plaintiffs. At the time of compromise, tatima was prepared and their statements in the Court were also recorded. The plaintiffs after 1993 had constructed 22-23 rooms and for construction of the house, he had used the wood existing over Khasra No.713/2/1. 19. DW2, Chuhar Singh, in his affidavit, has deposed that the land bearing Khasra No.706/650/1 measuring 1-6 bighas, Khasra No.706/650/2 measuring 2-6 Bighas and Khasra No.706/650/4 measuring 14 biswas is owned and possessed by the defendants. The plaintiffs had filed a civil suit titled as Gain Chand v. Chuhar Singh in the year 1992 and in that suit, compromise had been effected and accordingly, compromise decree was passed on 30.12.1992. Khasra No.706/650/1/1/1 measuring 4-15 bighas was in their possession and accordingly they gave the land bearing Khasra No.713/2/1 measuring 4-15 bighas in exchange to the plaintiffs. It was in use and possession of the plaintiffs. The compromise decree had been passed with the consent of the parties. 20. DW3, Multan Singh, in his affidavit, has deposed that in the month of December 1992, the Court had appointed Sh. Prithvi Singh, Advocate, as Local Commissioner, who had visited the spot and carried out demarcation. He had found the possession of Chuhar Singh over the suit land and Chuhar Singh had agreed to give the land bearing Khasra No.713/2/1 to the extent of 4-15 bighas in exchange to the plaintiffs and they had agreed to the proposal. According to him, even today, the land which the plaintiffs had received in exchange is in their possession and after the exchange, comprise was effected between the parties and the parties are now in possession of the land as per exchange. 21. The plaintiffs had instituted Civil Suit No.125/1 of 1992. The matter was settled on 30.12.1992 vide compromise, Ext. PW1/C. Statements of Chuhar Singh, Ext.PW8/A and Gian Chand, Ext.D1 were recorded in the Court to this effect. 21. The plaintiffs had instituted Civil Suit No.125/1 of 1992. The matter was settled on 30.12.1992 vide compromise, Ext. PW1/C. Statements of Chuhar Singh, Ext.PW8/A and Gian Chand, Ext.D1 were recorded in the Court to this effect. PW1, Gain Chand vide his separate statement Ext. D1, had specifically deposed that they (plaintiffs) had comprised the matter with the defendants as per compromise, Ext.PA. Tatima Ext. PB and Jamabandi for the year 1988-89, Ext. PC were enclosed with Ext. PA. He prayed that the suit be decreed as per the compromise, Ext. PA. On the basis of compromise, Ext. PW1/C and statements of Chuhar Singh and Gain Chand, Ext. PW8/A and Ext. D1 respectively, the then learned Sub Judge, Sirmaur rendered the judgment and decree dated 30.12.21992 in C.S. No.125/1 of 1992, whereby the plaintiffs were declared owners in possession of Khasra No. 713/2/1 measuring 4 Bighas 15 biswas and the defendants were declared owners in possession of Khasra No. 706/650/1/1/1 measuring 4 bighas 15 biswas, situated in Village Thana Kashoga, as per jamabandi for the year 1988-89. 22. The compromise decree was passed on 30.12.1992 and the present suit was filed on 7.9.2006 that too, after a gap of more than 13 years. The judgment and decree dated 30.12.1992 has attained finality. Though it is averred by the plaintiffs that they are not bound by the same, however, fact of the matter is that by way of present suit, they have not sought for setting aside the judgment and decree dated 30.12.1992. The parties were also put in their respective possession as per the compromise. The compromise decree was passed with the specific consent of the parties. Now, the plaintiffs cannot wriggle out of the compromise decree dated 30.12.1992. The issues were framed by the learned trial court on 5.9.2007. A specific issue was framed by the learned trial court to the effect that "whether the plaintiffs are estopped from challenging the compromise decree by their act and conduct? OPD". The learned trial court has rightly come to the conclusion that the plaintiffs were estopped from challenging the compromise decree by their own act and conduct. The learned first appellate Court has framed an additional issue to the following effect:- 1-A. Whether the compromise entered into inter se parties in earlier suit of injunction was fraudulently obtained and is null and void and appellants are not bound by it? The learned first appellate Court has framed an additional issue to the following effect:- 1-A. Whether the compromise entered into inter se parties in earlier suit of injunction was fraudulently obtained and is null and void and appellants are not bound by it? If so, its effect on the present suit? OPP. 23. The additional issue was not required to be framed at all by the learned first appellate Court, when there was no prayer in the suit, as noticed herein above, for declaring the judgment and decree, dated 30.12.1992 rendered by the then Sub Judge, Sirmaur in Civil Suit No.125/1 of 1992, null and void. The parties knew their case and accordingly, adduced their evidence. The matter was compromised between the parties as per Ext. PW1/C. Statements of Chuhar Singh, Ext.PW8/A and Gian Chand, Ext.D1 were recorded. The judgment and decree, dated 30.12.1992 has attained finality. PW1, Gain Chand, in his cross-examination, has categorically admitted that during demarcation, plaintiffs, defendants and Chuhar Singh had agreed to accept the land through compromise, which resulted into judgment and decree Ext. D2 and Ext. D3. He also admitted that no execution of the decree was filed by them. Therefore, the judgment and decree dated 30.12.1992 has conclusively determined the rights of the parties. 24 Their Lordships of Hon'ble Supreme Court in Nedunuri Kameswaramma v. Sampati Suba Rao, AIR 1963 SC 884 have held that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was mis-trial, which vitiates proceedings. Their Lordships have held as under :- 6. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a pasta in favour of her predecessors existed, and had teased the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikarn service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvaumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already. 25. Their Lordships of Hon'ble Supreme Court in Kunju Kesavan v. M.M. Philip, AIR 1964 SC 164 have held that when both the parties understood what was the issue in the case, absence of issue did not lead to a mis-trial sufficient to vitiate decision. Their Lordships have held as under :- 17. We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli, was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication : "The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman". and the notification was field to controvert his allegation. In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below. The High Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall now consider whether the finding on this part of the case given by the District Judge or that given by the High Court is correct. 26. In Katya Bala Dasi v. Nilmoni Pakhira, AIR 1987 Calcutta 248, the Division Bench has held that when the parties went to trial with full knowledge of each other's case and received all opportunities to establish their respective cases, no prejudice has been caused to the parties, trial of the suit is not vitiated and remand of the case for determination of lis after framing issue in question was not necessary. The Division Bench has held as under :- 32. The Division Bench has held as under :- 32. Considering the facts of this case, the pleadings and the prayers and having tested them in the light of the determinations amongst others in the case of Ram Krishna Mullick v. State of West Bengal (1975 (1) Cal LJ 154) (supra) and those in the case of Ayubali Sardar v. Derajuddin Mullick (1975 (2) Cal LJ 305) (supra), we do not find any justification in holding or in that, agreeing with the submissions of Mr. Banerjee, that the suit out of which this appeal arose, had abated. In fact, there has been no abatement of the suit under Section 57B of the West Bengal Estates Acquisition Act, 1953 and in any event Ram Krishna Mullick's case (supra), will have no application in a suit like the present one, where the question of title is involved. The above determination in Ram Krishna Mullick's case (supra), will not apply in this case since in the connected suit in our case, there was really no prayer for declaration of title and the same was one for partition and furthermore, the decree as passed, would come under Order 20, Rule 18 of the Code of Civil Procedure. The determinations in Ram Krishna Mullick's case (supra), in our view would ensure to the benefit of the plaintiff/respondents and not the defendant/appellants. Similarly, on facts, we cannot also agree with the submissions of Mr. Banerjee and that too on consideration of the decisions as cited at the Bar, that the learned Court below did any wrong in not framing such additional issue as claimed and as indicated by Mr. Banerjee and (that) too when, parties to the proceedings went to the trial, with full knowledge of each others case and that being the position, the non-framing of such additional issue as claimed, even if the same was necessary, has not caused any prejudice to any of the parties to the proceedings and they had in fact, received all and every opportunities to establish their respective cases. Such and above being the position, we do not also accede to the prayers of Mr. Banerjee that there should be an order for remand to the learned Court below, for having the lis, duly and effectively determined, on framing an additional issue as indicated above. In the facts of this case, we cannot also agree with the submissions of Mr. Banerjee that there should be an order for remand to the learned Court below, for having the lis, duly and effectively determined, on framing an additional issue as indicated above. In the facts of this case, we cannot also agree with the submissions of Mr. Banerjee, that there has been infraction of Order 14 Rule I Sub-rule (5) of the Code of Civil Procedure by the learned Court below. In terms of or under the above mentioned provisions, a Court has no doubt the obligation to frame proper issues from the materials on record, so that the material points in controversy may be duly and appropriately decided and finality of the concerned litigation is reached. We are of the view that the way and the manner in which the issues were framed, has left no room or any need for framing any additional issue, even after the admitted filing of the additional written statement by Katyabala and her daughter and that too when, the manner in which the said additional written statement was filed or the language in which the same was worded. The issues in this case were really framed upon the case as founded on the pleadings or which were consistent with the case of the respective parties. 27. In Khem Chand v. Hari Saran, AIR 1988 Himachal Pradesh 10, the Hon'ble Chief Justice has held that mere omission on the part of a trial court to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in the parties having gone to the trial without knowing that the said question was in issue between them and having therefore failed to adduce evidence on that point. The Hon'ble Chief Justice has held as under :- 11. The mere omission, therefore, on the part of a trial court to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in (sic) the parties having gone to the trial without knowing that the said question was in issue between them and having, therefore, failed to adduce evidence on that point. 28. 28. In Smt. Vidya Wati v. Hans Raj, AIR 1993 Delhi 187, the learned Single Judge has held that where there is an error or defect in framing issues and the parties know what case they have set up, such an error or defect would not cause prejudice to the parties. Learned Single Judge has held as under :- 44. It is quite clear that if the dominant intention of the parties was to create a lease of the shop the issue No. 1 quoted above would have been decided in favour of the tenant. So, in rebuttal to this issue the case of the landlord was that in fact lease of the business has been made between the parties. So, it cannot be said that the tenant was misled by frame of the issues. The parties knew as to what case they have set up in the pleadings and what case they have to prove by leading evidence. So, even if there was any error or defect in the frame of the issue that has not caused any prejudice to the case of the tenant. 29. In Sk. Ibrahim v. Sk. Mehmood, AIR 2003 Bombay 357, the learned Single Judge has held that when the parties fully aware of their respective cases, lead all the necessary evidence not only in support of their case, but in refutation of the claim of the other side, non-framing of the issues cannot be held to be a ground for remanding the case unless it is fatal to the case or resulted in mistrial which vitiates the proceedings. Learned Single Judge has held as under :- 10. It is well settled law that when the parties fully aware of their respective cases, lead all the necessary evidence not only in support of their case, but in refutation of the claim of the other side, non-framing of the issues cannot be held to be a ground for remanding the case unless it is fatal to the case or resulted in mistrial which vitiates the proceedings. Because if the evidence which has been led before the trial Court is sufficient to reach a right conclusion and neither party has raised any objection to the framing of the issues before the trial Court, there was no reason why the first appellate Court should have remanded the matter for fresh trial by giving suo motu directions to the parties to amend the pleadings which parties themselves have not sought. This is not permissible as a public policy for the reason that it is for the parties to put up their case in a proper manner and once they undergo the rigour of the trial, the findings should not be interfered with by remanding the case. 11. In the present case, the parties have been litigating since the year 1989, the question as to whether the plaintiff is entitled to right of way by virtue of prescriptive right or customary right, is a matter to be decided on merits as whatever evidence the parties have in the matter, has been led, but it is not the grievance of either plaintiff or the defendants that they were not given fair opportunity to lead the evidence or conduct the trial. The learned appellate Court has also not examined the case on merits which could have enabled it to assess the judgment and decree of the trial Court and, therefore, reverting the parties back to stage one could only result in prolonging the litigation and unnecessary waste of judicial time as well as causing inconvenience to the litigants. 30. Their Lordships of Hon'ble Supreme Court in Rishabh Chand Jain v. Ginesh Chandra Jain, (2016) 6 SCC 675 have held that order dated 3.8.2010 conclusively determined rights of the parties with regard to one of the issues viz. res judicata, hence, qualified as decree and procedural irregularity of not framing issue was inconsequential. What needs to be seen is effect and not process. Their Lordships have held as under :- 13. In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final. Rejection of a plaint is deemed to be a decree under Section 2(2) of the Code. Such determination can be preliminary or final. Rejection of a plaint is deemed to be a decree under Section 2(2) of the Code. Only two orders are excluded-(i) any adjudication from which an appeal lies as an appeal from an order and (ii) any order of dismissal for default. Order 43 of the Code has provided for appeals from orders. The impugned order does not come under Order 43. The order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, viz., Res Judicata. True, it is not an order passed on framing an issue. But at the same time, there is adjudication on the controversy as to whether the suit is barred by Res Judicata in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides. 14. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies under Section 115 of the Code in view of the specific bar under sub-Section (2) thereof. It is only appealable under Section 96 read with Order 41 of the Code. 31. Consequently, in view of analysis and discussion made herein above, the appeal is allowed and the impugned judgment dated 31.8.2012 rendered by learned Additional District Judge, Sirmaur at Nahan, in Civil Appeal No. 2-N/13 of 2011 is set aside and the suit filed by the plaintiffs is dismissed. Pending applications, if any, also stands disposed of. No order as to costs.