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2016 DIGILAW 1874 (ALL)

Ratanlal v. Shanti Devi

2016-05-13

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Chetan Chatterjee, for the petitioner. 2. This petition has been filed for setting aside the findings of Additional District Judge recorded in judgment dated 16.07.2014 passed in Civil Appeal No. 37 of 2012, Smt. Shanti Devi Vs. Ratan Lal and another, so far as, it is against the petitioner. 3. Smt. Shanti Devi (respondent-1) filed a suit (registered as Suit No. 158 of 2003) for permanent injunction, restraining the defendants from interfering in her possession over property, shown by letters A, B, C, D, E, F, in the plaint map, on 14.05.2003. In this suit the petitioner was impleaded as defendant-1 and Ram Prasad Tiwari (respondent-2) was impleaded as defendant-2. The plaintiff alleged that one Seth Dharmdas was owner of the property in dispute. After his death, his wife inherited it, who also died without any heir. The plaintiff had been living in property in dispute from about 30 years, from life time of her husband. On the basis of long possession, she has become its owner. She was widow and her children were minor. Taking advantage of her weakness and helplessness, the defendants were threatening to take forcible possession over the property in dispute. 4. The defendants contested the suit. The petitioner filed his separate written statement and denied plaint allegations. He took plea that Ram Prasad Tiwari (defendant-2) was owner in possession of the property in dispute. The petitioner purchased it from Ram Prasad Tiwari through sale deed dated 16.08.2002 for sale consideration of Rs. 10,000/-. Earlier it was a khandahar. After purchasing, the petitioner got constructed room, tin shed varandah and store room over it and is in possession of it. The plaintiff has no concern with it. Ram Prasad Tiwari (respondent-2) filed his separate written statement and denied plaint allegations. He took plea that after death of Seth Dharmdas, it was inherited by his son Ramesh Chandra. Ramesh Chandra executed a sale deed dated 25.03.1963 of the property in dispute in favour of Shripal adopted son of Lala Chohadmal. After death of Shripal, it was inherited by his widow Smt. Roshani Devi. Ram Prasad Tiwari used to look after Smt. Roshani Devi in her old age as such she executed a will dated 03.05.1988 in his favour. After death of Smt. Roshani Devi, he has become its owner on the basis of aforesaid will. After death of Shripal, it was inherited by his widow Smt. Roshani Devi. Ram Prasad Tiwari used to look after Smt. Roshani Devi in her old age as such she executed a will dated 03.05.1988 in his favour. After death of Smt. Roshani Devi, he has become its owner on the basis of aforesaid will. He executed a sale deed dated 16.08.2002 in respect of property shown by letters A, B, C, D in favour of Ratan Lal and gave possession to him. Remaining portion was let out by him to other persons. The petitioner and her husband were tenant of Shakil (earlier Pradhan) and Salim. They have no concern with the property in dispute, nor she was ever in possession of it. 5. The suit was tied by Civil Judge (S.D.), who framed four issues in the suit. Smt. Shanti Devi, in order to prove her case filed photostat copies of Ration card, papers relating to gas connection, papers relating to electricity connection and its bills, copy of plaint of O.S. No. 287 of 1998 Baldeo Singh Vs. Smt. Kanta Devi and copy of decree passed in it, copy of plaint of O.S. No. 90 of 2003 Ram Prasad Vs. Lalaram, written statement filed in it and order dated 08.08.2005 passed in it, copy of plaint of O.S. No. 78 of 2004 Ram Prasad Vs. Smt. Shanti Devi, written statement and order dated 05.04.2005 passed in it. She examined herself as PW-1 and Hazi Dilshad Ahmad as PW-2. 6. The petitioner, in order to prove his case, filed original sale deed dated 16.08.2002, copy of application dated 21.12.2002, receipt dated 10.12.2005 and power of attorney dated 31.03.1984 and examined himself as DW-1 and Brajbhushan as DW-2. Ram Prasad Tiwari did not adduce any evidence. After hearing the parties, Civil Judge (J.D.), by dated 23.07.2012, held that the plaintiff could not prove her title and possession over the property in dispute. On these findings, he dismissed the suit. Smt. Shanti Devi filed an appeal (registered as Civil appeal No. 37 of 2012) from aforesaid decree. The appeal was heard by Additional District Judge, who by dated 16.07.2014, held that both the parties failed to prove their title and possession over the property in dispute, which appears to have been vested in State. On these findings, he dismissed the appeal. Hence this petition has been filed. 7. The appeal was heard by Additional District Judge, who by dated 16.07.2014, held that both the parties failed to prove their title and possession over the property in dispute, which appears to have been vested in State. On these findings, he dismissed the appeal. Hence this petition has been filed. 7. The counsel for the petitioner submitted that trial court framed Issue No. 1 to the effect as to whether the plaintiff was owner of the disputed property? Trial court did not frame any issue in respect of title and possession of the petitioner. In the absence of any issue in respect of title and possession of the petitioner, he was unable to adduce any evidence to prove his title and possession. Without giving proper opportunity of evidence, appellate court has illegally recorded findings in respect of title and possession of the petitioner. Smt. Shanti Devi (respondent-1) filed the suit for permanent injunction, restraining the defendants from interfering in her possession over property in dispute. Issue was framed in respect of title and possession of Smt. Shanti Devi. The courts below were not required to adjudicate title and possession of the defendants as on findings that the plaintiff failed to prove her title and possession, suit was liable to be dismissed. Additional findings in respect of title and possession of the petitioner, without framing any issue in this respect is illegal and liable to be set aside. He relied upon the judgment Supreme Court in Makhan Lal Bangal v. Manas Bhunia, (2001) 2 SCC 652 , (paragraph-19) in which it has been held that the scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided. He also relied upon judgment of this Court in Kaniz Fatima Vs. Shah Naim Ashraf, AIR 1983 All 450 (DB), in which it has been held that a party is supposed to lead evidence only in respect of issues framed in the suit. The object of framing issues is to direct the attention of the parties to lead evidence on that specific issue framed. 8. I have considered the arguments of the counsel for the petitioner and examined the record. As stated above, Smt. Shanti Devi filed suit for permanent injunction restraining the petitioner and respondent-2 from interfering in her possession over the property in dispute, claiming her possession for about 30 years. The petitioner filed his separate written statement and denied plaint allegations. He took plea that Ram Prasad Tiwari (defendant-2) was owner in possession of the property in dispute, from whom he has purchased it through sale deed dated 16.08.2002 for sale consideration of Rs. 10,000/-. Earlier it was a khandahar. After purchasing, the petitioner got constructed room, tin shed varandah and store room over it and is in possession of it. He took plea that Ram Prasad Tiwari (defendant-2) was owner in possession of the property in dispute, from whom he has purchased it through sale deed dated 16.08.2002 for sale consideration of Rs. 10,000/-. Earlier it was a khandahar. After purchasing, the petitioner got constructed room, tin shed varandah and store room over it and is in possession of it. The plaintiff has no concern with it. Ram Prasad Tiwari (respondent-2) filed his separate written statement and denied plaint allegations. He took plea that after death of Seth Dharmdas, it was inherited by his son Ramesh Chandra. Ramesh Chandra executed a sale deed dated 25.03.1963 of the property in dispute in favour of Shripal adopted son of Lala Chohadmal. After death of Shripal, it was inherited by his widow Smt. Roshani Devi. Ram Prasad Tiwari used to look after Smt. Roshani Devi in her old age as such she executed a will dated 03.05.1988 in his favour. After death of Smt. Roshani Devi, he has become its owner on the basis of aforesaid will. He executed a sale deed dated 16.08.2002 in respect of property shown by letters A, B, C, D in favour of Ratan Lal and gave possession to him. The petitioner, in order to prove his case, filed original sale deed dated 16.08.2002, copy of application dated 21.12.2002, receipt dated 10.12.2005 and power of attorney dated 31.03.1984 and examined himself as DW-1 and Brajbhushan as DW-2. Ram Prasad Tiwari did not adduce any evidence. Thus issue was well within knowledge of the petitioner and the petitioner has adduced his evidence to prove his title and possession over the property in dispute. Under Order 14 Rule 1 C.P.C. issues are required to be framed in respect of material proposition of fact and law which are asserted by one party and denied by other party. Thus material proposition asserted by the petitioner was also in issue and was well within his knowledge. He has adduced his evidence to prove his title and possession over the property in dispute. In the absence of specific issue in this respect, no prejudice has been caused to him. After, failing to prove his title and possession, it is not open to the petitioner to say that in the absence of proper issue, he was deprived from adducing evidence. In the absence of specific issue in this respect, no prejudice has been caused to him. After, failing to prove his title and possession, it is not open to the petitioner to say that in the absence of proper issue, he was deprived from adducing evidence. Such findings could not be set aside by second appellate court as such this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution cannot set aside these findings. 9. Supreme Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 , held that we see no substance in the contention that the plea of lis pendens is not open to the plaintiff on the ground that it had not been raised in the pleadings. It is true that neither the plaint nor the reply statement of the plaintiff contains any averment that the sale is affected by the rule of lis pendens. Nor is there any issue specifically directed to that question. However we are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them. 10. Again in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 , held that 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 mistrial 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. 11. 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. 11. Constitution Bench in Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 , held that but cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance, the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties, was in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial that the formal requirement of pleadings can be relaxed. 12. In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242 , held that it is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. 13. In Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, (1988) 1 SCC 383 , held that though formally no issue was framed, the parties went to trial and adduced evidence with this issue in mind and have drawn the attention of the court to the existence of another house belonging to the appellant in Ismail Madan Lane and the said house being not vacant. There is, therefore no need for the appeal being remanded for a finding on the question whether alternate suitable accommodation is available for the appellant. 14. Sardul Singh v. Pritam Singh, (1999) 3 SCC 522 , held that it is well settled that notwithstanding the absence of pleadings before a court or authority, still if an issue is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an opportunity to produce evidence or cross-examine witnesses in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later. 15. Even in Makhan Lal Bangal v. Manas Bhunia, (2001) 2 SCC 652 , relied upon by the counsel for the petitioner, in paragraph-21, it was held that however, in the facts of the present case, we are of the opinion that the defective framing of the issues though material, has not vitiated the trial inasmuch as we are satisfied that the parties have gone to the trial with full knowledge of the allegations and counter-allegations made in the pleadings. None of the parties has complained of prejudice. None of the parties has complained of prejudice. None had made a prayer to the High Court, before going for trial, for amending or striking down any of the issues. We need say no more about the issues. This proposition has been followed in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 . 16. In Commr. of Endowments v. Vittal Rao, (2005) 4 SCC 120 , held that in the suit OS No. 509 of 1971, although no specific issue was raised as to the scope and nature of the gift deed, the Commissioner of Endowments (Appellant 1) in the written statement had raised a plea that the gift deed merely gave general power of attorney to Gunnaji. In that situation, in order to decide the issues that arose for consideration in the suit, it was necessary to decide as to what rights were conferred by the gift deed on Gunnaji and what was the nature and scope of the gift deed. It cannot be said that these aspects as to the nature and scope of the gift deed and the rights that were conferred on Gunnaji did (sic not) arise for consideration. Both the parties knew about the same. The High Court in Second Appeal No. 122 of 1979, as already stated above, noticing the findings of the lower appellate court, recorded findings that the land was gifted to Gunnaji absolutely, the Government could not claim any interest, the Temple constructed on a portion of the land was a private temple and it did not make the gift of the land an endowment in favour of God. These findings have attained finality. Failure to frame a formal issue by the court would not invalidate the findings of the binding judgment between the parties. The aforementioned findings against the appellants could neither dilute nor deprive their binding character merely because specific issue was not raised in the suit. In the earlier round of litigation to decide the nature and scope of gift deed Ext. A-1. Accordingly, the courts decided that the gift made in favour of the ancestors of Respondent 1 of the land was absolute and it was not an endowment for a public or charitable purpose. In the earlier round of litigation to decide the nature and scope of gift deed Ext. A-1. Accordingly, the courts decided that the gift made in favour of the ancestors of Respondent 1 of the land was absolute and it was not an endowment for a public or charitable purpose. On the facts of the case, it is clear that though an issue was not formally framed, the issue was material and essential for the decision of the case in the earlier proceeding. Hence, the bar of res judicata applies to the facts of the present case. 17. In Bhuwan Singh v. Oriental Insurance Co. Ltd., (2009) 5 SCC 136 , held that a finding of fact has been arrived at that the appellant had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced by non-framing of the specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. 18. In view of the aforesaid discussions, the impugned order do not suffer from any illegality. The petition has no merit and is dismissed.