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2022 DIGILAW 1448 (PNJ)

Mohd. Yousaf @ Yousaf v. Mohd. Sadiq @kaka

2022-08-04

ARUN PALLI

body2022
JUDGMENT Arun Palli, J. - The defendants are in appeal against the judgment and decree dated 25.11.2013, passed by the first appellate court, vide which the decree dated 07.03.2011, rendered by the trial court, dismissing the suit of the respondents-plaintiffs was set aside and the matter was remitted to the trial court, in terms of Order 41 Rule 23-A of the Code of Civil Procedure, (for short, 'CPC'), for re-decision. 2. Parties to the lis, hereinafter, shall be referred to by their original positions in the suit. 3. In a suit filed by the respondents-plaintiffs, under Order 1 Rule 8 of CPC, they prayed for a decree of permanent prohibitory injunction restraining the defendants or their agents from interfering in their peaceful possession from raising any construction and for managing and controlling Takia Khatika situated at Mohalla Khatikan wala Malerkotla. 3. In brief, the case set out by the plaintiffs was that they were members of the Khateek community and since time immemorial, the suit property was being used by Khateek Biradari for cleansing and storage of animal skin. Given the nature of their work, members of the Khateek Biradari resided together at Mohalla Khateekan, away from other communities. And as skinning of animals, washing and drying of the skin emitted a foul smell, the Khateek Biradari was ordained by His Highness, Sh. Ahmed Ali Khan, Nawab of Malerkotla, to use Dhob Ghat for skinning the dead animals. Whereas, the suit property (199 feet x 84 feet), which was bequeathed vide a gift deed dated 26.11.1926 to the Khateek Biradari, was ordered to be used only for storage of dry skin of animals. Resultantly, the suit land had been in continuous possession of the members of Khateek Biradari, and was used and managed by them for common and general purposes. But, as despite that, the defendants, who belonged to Kamboj community and had no concern with the suit property, were threatening to interfere in the possession of the plaintiffs, thus, the suit. 4. In the written statement filed on behalf of defendants No.2 to 5, it was admitted that the suit property was situated at Mohalla Khateekan wala. But, the Mohalla was inhabited by people even from the other communities, i.e. Kamboj, Gujjar, Julaha, Ghumar, Lalari, Tarkhan, Khateek etc. 4. In the written statement filed on behalf of defendants No.2 to 5, it was admitted that the suit property was situated at Mohalla Khateekan wala. But, the Mohalla was inhabited by people even from the other communities, i.e. Kamboj, Gujjar, Julaha, Ghumar, Lalari, Tarkhan, Khateek etc. For, all the communities had an equal and common interest in the suit property, a body (Intzamia Committee Takia Jumla Bashindgan Deh) was formed and registered for managing the same. Accordingly, it was denied that the suit property was owned, possessed and managed only by the Khateek community. The gift deed propounded by the plaintiffs was alleged to be a forged and fictitious document. 5. In a separate written statement filed on behalf of defendants Nos. 6 to 34, it was denied if the plaintiffs had an exclusive right over the suit property. The alleged gift deed was said to be a forged/fabricated document. And, rather the suit property was claimed to be a Wakf property. 6. Upon pleadings being exchanged, and the parties to the Us having understood the rival claims, the following issues were frarned:- 1. Whether the disputed property is owned and possessed by Khateekan Biradari and was gifted away to Khateekan Biradari vide gift deed dated 26.11.1926?OPP 2. Whether Khateek Biradari has raised constructions upon the suit property, if so, its effect?OPP 3. Whether the plaintiffs are entitled to injunction as prayed for?OPP 4. Whether a body of Takia is a registered body and manages the affairs of the property, if so, its effect?OPP 5. If issue No.4 is proved, whether the said body is fictitious and forged?OPP 6. Whether gift deed dated 26.11.1926 is forged and fictitious document?OPD 6a. Whether the Court has jurisdiction in this suit? OPP 6b. Whether the suit is maintainable?OPP 6c. Whether the suit is bad for non joinder of necessary parties?OPD 6d. Whether the cause of action is there to the plaintiflPOPP 7. Relief. 7. But, for its significance and decisive bearing on the issue that arises for consideration, I would have avoided a detailed reference to the witnesses examined by the parties: the plaintiffs, in support of their claim, examined Sh. R.K.Sood, Advocate, (PW1), who proved his report (Ex.PWl/A), prepared by him as a Local Commissioner; Naresh Kumar Garg, draftsman, (PW2), who proved site plan (Ex.Pl); Mohd. Ramzan (PW3), who proved the signatures of His Highness, Sh. R.K.Sood, Advocate, (PW1), who proved his report (Ex.PWl/A), prepared by him as a Local Commissioner; Naresh Kumar Garg, draftsman, (PW2), who proved site plan (Ex.Pl); Mohd. Ramzan (PW3), who proved the signatures of His Highness, Sh. Ahmed Ali Khan, Nawab Malerkotla, on the documents Ex.P3, Ex.P4, Ex.P5, Ex.P6 and Ex.P7 (gift deed dated 26.11.1926); Gyan Parkash Sharma, (PW4), document expert, who submitted his report (Ex.PW4/A) as regards comparison of the signatures of His Highness, Nawab Ahmed Ali Khan, on documents Ex.P3 to ExP7; V.B. Bhatnagar, (PW5) another handwriting and fingerprint expert; Om Parkash Chauhan (PW6); Mohd. Aslam (PW7); Mohd. Shakoor (PW8); Mohd. Siraj Din (PW9), who proved the rent note dated 1.1.1985 (Ex.PW9/A); Sheelu (PW10); Mohd. Sadiq (PW13) and Abdul Hamid (PW14), who testified the claim of the plaintiffs, as set out in the plaint. Noor Mohd. Malik was examined as PW11, who proved on record the signatures of His Highness on the documents, Ex.Pl 1/A and Ex. Pll/B. Rafiq Ahmed, J.E. from the office of Malerkotla, was examined as PW12, to prove the application (Ex.PW12/A), moved to the Municipal Council, Malerkotla, by Gulam Qadar for permission to raise construction, and the site plans (Ex. PW12/B and Ex.PWl/C). 8. Likewise, the defendants examined Mohd. Nazir, (DW1) who placed on record copy of ration cards as Ex.Dl, his photograph as Ex.D2, and a copies of registration certificate as Ex.D3; Mohd. Yousuf (DW2); Dr. Atul Kumar Singla, (DW3), who placed on record photo charts Ex.DW3/2 to Ex.DW3/4, the experiment sheet Ex.DW3/5, the negatives Ex.DW3/6 to Ex.DW3/ll, along with his report Ex.DW3/l. In his cross examination, he (DW3) deposed that the signatures on Ex.PW7/A were transplanted by a photostat machine. The defendants further examined Mohd. Hanif (DW4) and Inderbir Singh Bajwa, Inspector Food and Supply, Malerkotla, [DW2 (repeat)], who proved the ration card and the forms as Ex.Dl/B, Ex.D2/A, Ex.D2/B, Ex.D3/B, Ex.D4/B, Ex. D5/A, Ex.D5/B. 9. Upon analysis of the matter in issue, the trial court concluded that as the suit filed by the plaintiffs was for injunction simpliciter, the court was not required to determine their title/ownership over the suit property. Likewise, it was observed that it would also be erroneous to record any finding regarding execution and validity of the gift deed dated 26.11.1926, for even in that case, by necessary implication, the court would be deciding ownership/title on the basis of the gift deed. Likewise, it was observed that it would also be erroneous to record any finding regarding execution and validity of the gift deed dated 26.11.1926, for even in that case, by necessary implication, the court would be deciding ownership/title on the basis of the gift deed. Therefore, the only question to be determined was; if the plaintiffs were in actual possession of the suit property, and being members of Khateek Biradari, they had an exclusive right to manage and use the suit property. Accordingly, in reference to the application (Ex.P12/A), vide which the plaintiffs had applied to Municipal Council, Malerkotla, for permission to raise construction over the suit land, and the site plans (Ex. P12/B and Ex. P12/C), it was held that the said application was moved by one Gulam Qadar (member panchayat) to construct his own house and not in his capacity as the Manager of Takia. Further, the plaintiffs had failed to prove that the entire construction at the spot was raised by the members of Khateek Biradari. Thus, as regards possession over the suit property, findings on issue No.l as also on issues No.2 and 3 were returned against the plaintiffs. Whereas, qua a part of issue No.l that concemed/related to the gift deed dated 26.11.1926 and similarly on issue No.6, it was held that the court would desist from returning any finding. Further, as nothing was brought on record to suggest that the suit property was being managed by the alleged body, registered pursuant to the registration certificate Ex. D3, issues No.4 and 5 were decided against the defendants. As for issue No.6b, the suit was held to be not maintainable, for a dispute qua title/ownership could not be examined in a simpliciter suit for injunction. And, whether the suit was bad for non joinder of necessary parties, the finding on this issue (6c) was returned against the defendants. Accordingly, in view of the findings on issues No.2, 3 and 6b, the suit was dismissed. 10. In an appeal preferred by the plaintiffs, the appellate court concluded that the major controversy between the parties was: whether the suit property was bequeathed by the Ruler of erstwhile Princely State of Malerkotla, vide gift deed dated 26.11.1926 to the Khateek Biradari? And, even though a specific issue (issue No.l), was framed in this regard, but the trial court chose not to record any finding on the said issue. And, even though a specific issue (issue No.l), was framed in this regard, but the trial court chose not to record any finding on the said issue. It was held that the observations recorded by the trial court that in a simpliciter suit for injunction, only the possession was to be determined, and thus, it would be erroneous to even record any finding qua the validity of the gift deed, for it would amount to deciding title, were untenable and contrary to the settled law. Similarly, no finding was recorded by the trial court on issue No.6, 'whether gift deed dated 26.11.1926 is forged and fictitious document?' and on even issue No.6d., 'whether the cause of action is there to the plaintiff?' Further, it was concluded that even the findings qua issues No.2 and 3, or whether the Khateek Biradari had raised constructions upon the suit land and/or the plaintiffs were entitled to the injunction prayed for, were squarely dependent upon determination of issue No.l. Thus, merely on the basis of findings recorded by the trial court on issues No.2, 3 and 6b, the suit of the plaintiffs could not have been dismissed. Resultantly, the appellate court set aside the decree dated 07.03.2011, and in terms of the provisions of Order 41 Rule 23-A CPC, remitted the matter to the trial court for re- decision, after recording findings on all the issues. 11. Thus, this appeal. 12. Learned counsel for the defendants/appellants submits that as concededly, the plaintiffs prayed for a decree for injunction simpliciter, all that was required to be determined by the trial court was if they were in possession of the suit property. He submits that issue No.l as regards plaintiffs' possession; issue No.2, whether the constructions upon the suit property was raised by the Khateek Biradari; and issue No.3, if the plaintiffs were entitled to the injunction prayed for, being independent/exclusive and complete in themselves, the trial court could not be said to have erred even if no finding was recorded on issue Nos. 1 and 6 regarding execution and veracity of the gift deed. Further, the impugned judgment and decree was unsustainable, as without reversing the findings on all issues or issue Nos.2, 3 and 6b, the appellate court could not have invoked Order 41 Rule 23A CPC, and set aside the decree dated 07.03.2011 itself and remitted the matter. 1 and 6 regarding execution and veracity of the gift deed. Further, the impugned judgment and decree was unsustainable, as without reversing the findings on all issues or issue Nos.2, 3 and 6b, the appellate court could not have invoked Order 41 Rule 23A CPC, and set aside the decree dated 07.03.2011 itself and remitted the matter. Not only that, he asserts that even if the trial court had failed to record a finding on issues No.l and 6 qua the gift deed, the appellate court, under Order 41 Rule 25 CPC, could always seek a report rather than setting aside the decree (ibid). In support of his submissions, he has placed reliance upon a decision of this Court in Hasham and others Vs. Jhangi Ram, 2005 (1) RCR (civil) 536. 13. Per contra, learned counsel for the respondents submit that apparently the judgment and decree rendered by the trial court was perverse and unsustainable. It is urged that the suit property was gifted to the Khateek Biradari, and thus, was a grant by the Sovereign of the State, therefore, without recording any finding on issues No.l and 6 qua the execution and purpose for which the gift deed dated 26.11.1926 was executed, no finding even on part of issue No.l regarding possession, and issues No.2 and 3 could be recorded by the trial court. Apparently, it is submitted that findings on issues No.2 and 3 were dependent upon the finding that was required to be recorded on issue No.l, and since the trial court failed to determine issues No.l and 6, the only option available to the appellate court was to set aside the decree and remit the matter. Further, even as regards issues No.6a and 6d, no finding was returned by the trial court. Therefore, they assert that the impugned judgment and decree passed by the first appellate court, warrants no interference. In this regard, reliance is placed upon a decision of this Court in Piara Singh and others Vs. Harbhajan Singh and others, (SAO No. 29 of 2008, decided on 20,01,2011). 14. I have heard learned counsel for the parties and perused the records. 15. In this regard, reliance is placed upon a decision of this Court in Piara Singh and others Vs. Harbhajan Singh and others, (SAO No. 29 of 2008, decided on 20,01,2011). 14. I have heard learned counsel for the parties and perused the records. 15. As shall be expedient to repeat, in brief, the claim of the plaintiffs was that as the suit property was being used by the Khateek Biradari since time immemorial, the then Ruler of erstwhile Princely State of Malerkotla passed an order recognizing their possession, and vide a gift deed dated 26.11.1926, the same was bequeathed in their favour. Accordingly, the suit property had been in continuous and uninterrupted possession of the Khateek Biradari and was being used by members of the community for general and common purposes. Indisputably, the plaintiffs had filed a simpliciter suit for injunction. However, the fact that truly assumes significance here is that the injunction prayed for, was not simply to protect possession, but also to avert any interference in the possession, management and control of the plaintiffs and their right to raise constructions over the suit property (Takia Khatika). Thus, it was from this perspective and understanding of the rival claims of the parties, the trial court had framed issue No.l and 6: '1.Whether the disputed property is owned and possessed by Khateekan Biradari and was gifted away to Khateekan Biradari vide gift deed dated 26.11.1926?OPP 6. Whether gift deed dated 26.11.1926 is forged and fictitious document?OPD' (emphasis supplied) 16. Further, for both the sides were conscious of the true essence of the controversy, they accordingly led their respective evidence qua the issues of which the onus of proof was laid upon them. But, yet the trial court chose not to record any finding on issues No.l and 6, for in a simpliciter suit for injunction, the question of ownership/title could not be examined. But, yet the trial court chose not to record any finding on issues No.l and 6, for in a simpliciter suit for injunction, the question of ownership/title could not be examined. The trial court refrained itself even from addressing the question as regards execution and validity of the gift deed, as that too, in its opinion, would be determining nothing but the ownership of the plaintiffs: 'It would accordingly be erroneous for this Court to give any findings as regards the legality, validity and authenticity of the gift deed dated 26.11.1926, inasmuch, if this Court, gives any findings as regards the legality, validity and authenticity of the gift deed dated 26.11.26, by necessary implication, this Court shall be passing a decree as regards the title of the plaintiffs on the basis of a gift deed dated 26.11.1926'. 17. Ex facie, the approach, analysis and understanding of the trial court qua the matter in issue was flawed. There cannot be any quarrel with the general proposition that in a simpliciter suit for injunction, the question of title/ownership cannot be examined. But, it has not been laid down as yet as an absolute principle of law that notwithstanding anything, the question of title can never be examined or gone into in a suit for injunction simpliciter. Rather, the law is settled that where the necessary pleadings as regards title/ownership are set out in the plaint, an issue regarding title is framed, parties to the lis have led their evidence and the said issue does not involve any complex question(s) of fact and law, the court may decide the title. It would be apposite, at this stage, to refer to a decision of the Supreme Court in Anaihula Sudhakar Versus P. Buchi Reddy (Dead) By LRs and others, 2008 (4) SCC 594 :- '17. (a) XX 3C3C (b) XX XX XX XX (c) But a finding on tide cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to tide, the court will not investigate or examine or render a finding on a question of tide, in a suit for injunction. Where the averments regarding title are absent in a plaint and where there is no issue relating to tide, the court will not investigate or examine or render a finding on a question of tide, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to tide, the court will relegate die parties to the remedy by way of comprehensive suitfor declaration of tide, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding tide, and appropriate issue relating to tide on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon die issue regarding tide, even in a suit for injunction. But such cases, are the exception to the normal rule that question of tide will not be decided in suits for injunction. But persons having clear tide and possession suing for injunction, should not be driven to die costtier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identity cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 18. Significantly, analysis of the respective pleadings of the parties and the nature/formation of issues No.l and 6, in particular, irresistibly shows that there was no dispute as regards the right, power and authority of the then Ruler of erstwhile Princely State of Malerkotla to bequeath/transfer the suit property. Therefore, principally the only question to be examined was the execution and veracity of the gift deed dated 26.11.1926, and determination of the claim of the plaintiffs or their right, title and interest, upon construction/interpretation of the said document. Thus, there were hardly any complex questions of fact and law that were required to be examined, which dissuaded the court to delve into the complexities of the issues, assuming it not viable to be determined in a simpliciter suit for injunction. Thus, there were hardly any complex questions of fact and law that were required to be examined, which dissuaded the court to delve into the complexities of the issues, assuming it not viable to be determined in a simpliciter suit for injunction. Therefore, the only conclusion that could be reached is that the trial court, apparently, failed to analyze the core issue and carry out the necessary exercise or enquiry to determine if the issues framed by the court itself could be examined in the present suit, upon which the entire dispute was centered on. And, none other than the counsel for the appellants conceded this position before the first appellate court 'Even the learned counsel for the respondents has conceded this fact that while deciding the case, the learned lower Court has failed to decide the major issues in this case'. 19. Not just that, what had also been overlooked by the trial court was that, for the just and conclusive determination of even issues No. 1,2,3 and 6b or whether the plaintiffs were entitled to the injunction prayed for, it was inevitable but to first address the question: if, pursuant to the gift deed, the Khateek Biradari was vested with any exclusive right of usage, possession, management and control over the suit property. Therefore, in the given situation, even the findings qua issues No. 1,2,3 and 6b, recorded by the trial court, were erroneous and unsustainable. And it was in this backdrop, the appellate court had concluded: 'When a specific issue has been framed regarding the gift-deed dated 26.11.1926, then it was the imperative duty of the learned lower Court to decide the validity of gift-deed dated 26.11.1926 before deciding the possession of the parties. After deciding the gift-deed, then only the lower Court could have decided that whether the plaintiffs are in exclusive possession of the suit property or not. The learned lower Court has merely foaled to give findings on gift-deed dated26.11.1926 on the plea that it is not a suit for declaration. When the findings of issue No.l are not given by the learned lower Court, then it cannot be decided that which of the parties are in possession of the property in dispute. The learned lower Court has merely foaled to give findings on gift-deed dated26.11.1926 on the plea that it is not a suit for declaration. When the findings of issue No.l are not given by the learned lower Court, then it cannot be decided that which of the parties are in possession of the property in dispute. The findings of issues No.2 and 3 are dependent on the findings of issue No.l. It is astonishing to note that the learned lower Court has foaled to give findings on issue No.l which is certainly to the prejudice of the interest of the plaintiffs. Only the decision of issue No.l could have helped the Court to decide the controversy properly'. 20. The argument advanced by the learned counsel for the appellants that even if the trial court failed to record a finding on issue No.l and 6, the decree passed by the trial court, as such, could not have been set aside under Order 41 Rule 23-A, unless the findings on all other issues were reversed, would not advance the case of the defendants/appellants either. 21. There cannot be any quarrel with the proposition that power under Order 41 Rule 23-A has to be exercised with extreme circumspection. Just because the trial court omitted to frame or try an issue or the finding recorded on a certain issue/issues was erroneous or the judgment passed by the trial court, in the opinion of the appellate court, proceeded on a wrong premise, the decree passed by the trial court would not be set aside on that score alone. It is only when the appellate court, on due consideration and analysis of the matter, reverses the findings on all the issues and sets aside the decree, whereupon re-trial is the only and the inevitable option, the appellate court would invoke Order 41 Rule 23-A and remit the matter for re-decision. What was/is the position in the matter at hand? 22. Concededly, the trial court failed to record any findings on issue No.l qua the gift deed and even on issues No.6, 6a and 6d. What was/is the position in the matter at hand? 22. Concededly, the trial court failed to record any findings on issue No.l qua the gift deed and even on issues No.6, 6a and 6d. And, as demonstrated above, for the just and conclusive determination of even issues No.2, 3 and 6b, it was imperative to record a finding qua execution of the gift deed and determine, upon construction/interpretation of the said document, if the plaintiffs had any right of exclusive usage, possession, management and control over the suit property. However, apparently, the trial court failed to address those questions and thus, not just the findings recorded on issue No.2,3 and 6b, but the judgment, as a whole, was vitiated. Therefore, the argument that the trial court had the option to call for the report under Order 41 Rule 25 CPC, pales into insignificance and rather, in a way, supports the position that finding on issues No.l and 6 qua the gift deed was extremely crucial for determining the lis. Thus, in the given circumstances, the appellate court was choice-less, but to invoke Order 41 Rule 23-A, and set aside the decree dated 07.03.2011, and remit the matter to the trial court for re-decision. 23. Adverting to the decision rendered by this Court in Hasham (supra), relied upon by learned counsel for the appellants, suffice it to say, the same has no bearing on the matter in issue. As in the said case, the plaintiff was in appeal before this Court against the order passed by the first appellate court, whereby, while reversing the findings of the trial court on issues No.l and 2, the judgment itself was set aside and the matter was remitted. And this Court observed that if the appellate court was of the view that the trial court had failed to record any specific finding on issue No.l, and the finding on issue No.2 was not tenable, it could either reverse the findings on issues No.l and 2 by itself, or seek a report of the trial court if evidence on such issues was deficient in any manner. But, as there was sufficient evidence available on record, the first appellate court ought to have decided those issues by itself. And thus, had the option to either reverse the findings on issues No.l and 2 or maintain the same. But, as there was sufficient evidence available on record, the first appellate court ought to have decided those issues by itself. And thus, had the option to either reverse the findings on issues No.l and 2 or maintain the same. But, at any rate, it was not open to the first appellate court to set aside the decree itself and remand the matter. But, such is not the position in the matter at hand. 24. However, having said that, still the ends of justice impel this Court to modify, though to a limited extent, the impugned judgment and decree. The first appellate court, while remitting the matter, had directed the trial court to afford opportunity to the parties to lead evidence afresh on all the issues, before deciding the suit. Two decades had gone by since the institution of the suit, when the appeal was decided by the appellate court on 25.11.2013. Today, it has been nearly 29 years. Concededly, parties to the lis had already led voluminous evidence on all the issues. Evidently, while passing the necessary orders under Order 41 Rule 23A, the appellate court has the same power as it has under Rule 23:- '23. Remand of case by Appellate Court-....the Appellate Court may, if it thinks fit, by order remand the case, and may further direct -what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. " 25. Therefore, in the given circumstances, requiring the parties to re-lead the entire evidence was something that was least warranted. 26. In the wake of the position as sketched out above, the appeal is dismissed being bereft of merit. But, for the reasons indicated above, the impugned judgment is modified to the extent that trial court shall re-decide the suit on the basis of the evidence already on record. 26. In the wake of the position as sketched out above, the appeal is dismissed being bereft of merit. But, for the reasons indicated above, the impugned judgment is modified to the extent that trial court shall re-decide the suit on the basis of the evidence already on record. It, however, is clarified that this order shall not constitute any expression of opinion on the merits of the case of either party, as the trial court would now proceed to determine the dispute, strictly in accordance with law. 27. This Court is sanguine that the trial court shall make every endeavour to decide the suit, as expeditiously as possible.