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2018 DIGILAW 2249 (HP)

Bheem Chand v. Lekh Raj

2018-12-18

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The defendants No.1 and 2 are the appellants, who after having suffered decree at the hands of the learned trial court, as affirmed by the learned first appellate court, have filed the instant appeal. 2. The parties shall be referred to as the "plaintiffs" and "defendants". 3. Briefly stated the facts leading to filing of the present appeal are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction on the ground that defendant No.3 was recorded as owner in possession of the land comprised in Khasra Nos. 370, 329, 452/338, 454/341, 342, 343, 345, 367 and 368 measuring 19-2 Bighas, situated in Mauja Biala, Pargna Loh Tikri, Tehsil Churah, District Chamba, H.P. (for short, "suit land"). It is averred that the suit land was ancestral between the parties and the plaintiffs and proforma defendants No. 4 to 6 were co-parceners. Defendant No.3 had only 1/7th share in Khasra Nos. 370 and 329 and 1/8th share in Khasra Nos. 452/338, 454/341, 342, 343, 345, 367 and 368, therefore, she being ''Karta'' of Hindu Undivided Family had no right to sell the suit land to defendants No. 1 and 2. Moreover, there was no legal necessity to sell the suit land. Therefore, the sale was illegal and not binding upon the plaintiffs and proforma defendants No. 4 to 6, who being co-parceners had every right over the suit land. It is lastly averred that the suit land was in possession of the plaintiffs and proforma defendants No. 4 to 6, yet defendants No. 1 and 2 on the strength of illegal sale deed in their favour, were threatening to interfere over the same. 4. The suit was resisted and contested by defendants No. 1 and 2 by filing written statement, wherein preliminary objections regarding maintainability, cause of action, locus standi and limitation were raised. On merits, it was stated that the suit land was neither ancestral nor plaintiffs and defendants No. 4 to 6 were its co-parceners. It is averred that defendants No. 1 and 2 were the absolute owners in possession of the suit land, therefore, had every right to enjoy the suit land. On merits, it was stated that the suit land was neither ancestral nor plaintiffs and defendants No. 4 to 6 were its co-parceners. It is averred that defendants No. 1 and 2 were the absolute owners in possession of the suit land, therefore, had every right to enjoy the suit land. It is further averred that since defendant No.3 was absolute owner in possession of the suit land, therefore, she was competent to sell the suit land to defendants No. 1 and 2, who after paying necessary sale consideration had become owners of the suit land. The necessity for defendant No.3 to sell the suit land to defendants No. 1 and 2 was on account of the plaintiffs and proforma defendants No.4 to 6 having neglected and refused to maintain defendant No.3, who was facing starvation. It is averred that at the time of attestation of mutation, the plaintiffs never raised any objection and, therefore, they were estopped from filing the suit. It is claimed that Defendants No. 1 and 2 were bona fide purchasers for valuable consideration and, therefore, the sale made in their favour was protected under the law. It was lastly averred that the mutation was correctly and validly attested after due inquiry. 5. The plaintiffs filed replication to the written statement, wherein averments made in the written statement were denied and the averments made in the plaint were reaffirmed and re-asserted. 6. On the pleadings of the parties, the learned trial court on 6.5.2003 framed the following issues:- 1. Whether the mutation No.200 dated 16.11.2001 qua the suit land in respect to the right of the plaintiffs is null and void? OPP 2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction against the defendant No.3 from alienating the suit property as alleged? OPP 3. Whether the suit of the plaintiffs is not maintainable? OPD 4. Whether the plaintiffs have got no cause of action? OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the suit of the plaintiffs is time barred? 7. Relief. 7. After recording the evidence and evaluating the same, the learned trial court vide judgment and decree dated 31.8.2006 decreed the suit filed by the plaintiffs and held the sale deed dated 8.11.2001 to be null and void. OPD 6. Whether the suit of the plaintiffs is time barred? 7. Relief. 7. After recording the evidence and evaluating the same, the learned trial court vide judgment and decree dated 31.8.2006 decreed the suit filed by the plaintiffs and held the sale deed dated 8.11.2001 to be null and void. Further, mutation No.200, dated 16.11.2001 qua the suit land in respect of the rights of the plaintiffs was also declared null and void. 8. Aggrieved by the judgment and decree passed by the learned trial court, defendants No. 1 and 2 filed an appeal before the learned first appellate court, but the same was dismissed vide judgment and decree dated 4.10.2007 leading to filing of the present appeal. 9. On 14.5.2008 the instant appeal came to be admitted on following substantial questions of law: 1. Whether the learned trial court has failed to frame proper issues especially the issue with regard to the sale in question being for legal necessity and also an issue on the point whether the property was coparcenery property or not? 2. If such issues were required to be framed whether non-framing of the issues is sufficient reason to set aside the judgments and decrees of both the courts below? 3. Whether the learned courts below have not correctly interpreted the provisions of Sections 6 & 8 of the Hindu Succession Act? 10. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. SUBSTANTIAL QUESTIONS OF LAW NO. 1 AND 2: 11. Since substantial questions of law No. 1 and 2 are instinctively interlinked and interconnected, therefore, they are taken up together for consideration and are being answered by common reasoning. 12. Adverting to the issues framed by the learned trial court, it would be noticed that there was no issue regarding the nature of the suit land as to whether the same was coparcenery or self acquired or ancestral property. 12. Adverting to the issues framed by the learned trial court, it would be noticed that there was no issue regarding the nature of the suit land as to whether the same was coparcenery or self acquired or ancestral property. Therefore, in absence of any such issue, both the learned courts below could not decree the suit of the plaintiffs only on the ground that the property was coparcenery property of which defendant No.3 was ''Karta'' in Hindu Undivided Family, which consists of her son Gain Chand and grandsons and could not have sold the same in absence of any legal or family necessity to sell the suit land, that too, without consent of the coparceners. Such findings were recorded by the learned trial court while answering issue No.1, which otherwise pertained only to mutation No.200 dated 16.11.2001 and not to the nature of the property in the hands of defendant No.3. 13. Framing of issues is an important stage, at which the scope of the trial is determined. It is the issues that determine the scope of the trial. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pinpoints into issues the disputes, on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues and correctly determining the real points in controversy, which need to be decided. 14. Order XIV Rule 1 CPC reads as under: 1. Framing of issues.- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2)Material propositions arc those propositions 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. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue. (4) Issues are of two kinds: (a)issues of fact, (b)issues of law. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue. (4) Issues are of two kinds: (a)issues of fact, (b)issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and 1 [after examination under rule 2 of Order X and after hearing the parties or their pleaders],ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing is this rule requires the Court to frame and record issued where the defendant at the first hearing of the suit makes no defence. 15. The scheme of Order XIV CPC 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. Therefore, each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. However, that was unfortunately not done in the present case. 16. Now, what would be the result of omission to frame issues or omission to frame proper issues would depend upon the facts and circumstances of each case. 17. The true scope of Order XIV Rule 1 CPC is that evidence led in, on an issue, on which the parties actually went to trial, should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which, they had no opportunity of adducing evidence, however, it may be clarified that the Rule would have no application to a case, where the parties go to a trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto. 18. As observed above, there was no issue regarding nature of the property as to whether the same was ancestral, coparcenery or self-acquired etc. Therefore, both the learned courts below could not have, while answering issue No.1 which, as observed above, otherwise pertained to the legality of mutation No.200 dated 16.11.2001, held the suit land to be ancestral and coparcenery and non-suited defendants No. 1 and 2 only on this ground alone. Therefore, both the learned courts below could not have, while answering issue No.1 which, as observed above, otherwise pertained to the legality of mutation No.200 dated 16.11.2001, held the suit land to be ancestral and coparcenery and non-suited defendants No. 1 and 2 only on this ground alone. 19. This precisely what the Hon''ble Supreme Court held in Vishwanatha Achari vs. Kanakasabapathy , (2005) 6 SCC 56 , wherein the Hon''ble Supreme Court was dealing with an appellate court''s decision on an issue other than those framed by the trial court and it was held that in such circumstances, the appellate court was not justified in deciding the issue, which was never framed. It shall be apposite to refer to the relevant observations, as contained in para 8 of the judgment, which read thus:- "8. A question was also formulated i.e. whether the lower Appellate Court is justified in dealing with issues other than those framed by the Trial Court and deciding the same in favour of the plaintiff depriving the defendant the opportunity to counter to plaintiff''s evidence. It has been clearly stated that there was no issue framed regarding the adverse possession. The lower Appellate Court was not justified in deciding issues which were not framed. The High Court seems to have taken a view that there was no direct reference to the issue of adverse possession. But that is really of no consequence when the specific stand of the appellant was that there was no issue framed relating to adverse possession and, therefore, the First Appellate Court should not have recorded any finding on that regard. The Trial Court had not specifically framed any issue relating to adverse possession. Under Section 107 of the CPC, the Appellate Court has power to frame issue other than those framed by the trial Court. But here again the requirement is to refer them for trial. Consequentially, the defendant would have got opportunity to adduce evidence in that regard." 20. In view of the aforesaid discussions, it can conveniently be held that the learned trial court has failed to frame proper issues and erred in recording findings regarding nature of the suit land in absence of any issue to this effect. 21. Accordingly, substantial questions of law No. 1 and 2 are answered in favour of defendants No. 1 and 2. SUBSTANTIAL QUESTION OF LAW NO. 3: 22. 21. Accordingly, substantial questions of law No. 1 and 2 are answered in favour of defendants No. 1 and 2. SUBSTANTIAL QUESTION OF LAW NO. 3: 22. Since this Court has not gone into merits of the case as set up by the respective parties and proposes to remand the case, it need not to answer this question lest it causes any prejudice to either of the parties. 23. In this view of the matter, I find merit in this appeal and the same is accordingly allowed. Consequently, the impugned judgments and decrees passed by both the learned courts below are set set aside and the matter is remanded back to the learned trial court, with a direction to frame proper issues, particularly with regard to the nature of the suit land, and after, affording opportunity of leading evidence to both the parties, decide the same afresh in accordance with law. 24. Before parting, it would be noticed that the suit pertains to the year 2002, therefore, the learned trial court is requested to decide the same as early as possible and in no event later than 30.6.2019. 25. The parties through their respective counsel are directed to appear before the learned trial court on 1.1.2019. 26. Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.