Saturday, 28 September 2019

What is duty of party if court has not framed proper issues?

Learned counsel for the appellants has vehemently argued that the learned trial Court has not framed issue regarding the pleadings raised by the appellants that the appellants are absolute owners of part of the suit land, which has been allotted to them during consolidation. In the absence of any pleadings, the appellants have suffered serious prejudice and, therefore, the judgment and decree passed by the Courts below are not sustainable,
 10. The reliance of the learned counsel is on a Division Bench judgment of this Court in Darshan Singh v. The Hindustan Cold Stores and Refrigeration Pvt. Ltd., 1969 PLR 566. It has been held that it is the duty of the Court to read the plaint and written statement to frame issues. The said aspect cannot be disputed. The issues were framed by the learned trial Court on 4.9.1976. The matter remained pending before the trial Court for a considerable time, but the appellants have not sought modification of the issues as contemplated under Order 14 Rule 5 CPC. Even if the Court has failed to frame any issue, it was incumbent upon the appellants to draw attention of the learned trial Court to frame proper issues at the earliest. However, now in the second appeal, it is too late for the appellants to allege that the proper issues were not framed. Therefore, the judgment referred by the learned counsel provides no help to the appellants.
Punjab and Haryana High Court
(Before Hemant Gupta, J.)

Chanan Singh Vs Santokh Singh 
R.S.A. No. 492 of 1981
Decided on January 10, 2007

Citation: 2007 SCC OnLine P&H 15 : (2007) 3 RCR (Civil) 32 : PLR (2007) 147 P&H 554 : (2007) 3 ICC 511


 Hemant Gupta, J.:— The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for possession of land measuring 8 kanals 18 marlas of land i.e. ¼th share of the land measuring 35 kanal 13 marlas, was decreed to the extent of 1/10th share of 33 kanals 5 marlas of land on deposit of Rs. 575/-.
 2. The brief facts out of which the present appeal arises are that the land measuring 15 kanals 18 marlas situated in area of village Bihran, Police Station Garhshankar, was originally owned by Fateh Singh, Gurdas and Jagiri son of Sunder. The plaintiff is son of Gurdas. Fateh Singh had ½ share and Gurdas and Jagiri ¼th share each in the aforesaid land. The aforesaid Fateh Singh, Gurdas and Jagiri sold the land aforesaid to one Mangal Singh father of the defendants vide registered sale-deed somewhere in the year 1924. The said sale become subject-matter of reversionary suit, which was decreed on 28.1.1924 in which it was held that the reversionary rights of the plaintiffs shall not be affected by such sale and on payment of Rs. 2000/- the reversioners shall be entitled to the possession of the suit land. The said decree was modified in appeal by the learned first Appellate Court when the amount of Rs. 2,000/- was enhanced to Rs. 2,300/-.
 3. After the death of Fateh Singh, his reversioners got decree for possession of ½ share. The remaining ½ share remained in the possession of Mangal Singh. Gurdas one of the vendors died on 20.2.1974. After his death, the present suit for possession was filed on 16.9.1975 in respect of the share of Gurdas and Jagiri. It is the case of the plaintiffs that the consolidation of holdings in their village took place about 23/24 years back and during such proceedings, the land measuring 35 kanals 13 marlas as detailed in the head note of the plaint, was allotted to defendant Nos. 1 and 2 in lieu of their previous holdings including ½ share of the aforesaid 15 kanals 18 marlas of the


land. The plaintiffs claimed possession of 8 kanals 18 marlas i.e. ½ share of 15 kanals and 18 marlas of land originally owned by three vendors.
4. The defendant-appellants in the corresponding para of the written statement did not dispute the factum of consolidation of holding of land but asserted that defendant Nos. 1 and 2 have been allotted land during consolidation proceedings in lieu of land of which defendant Nos. 1 and 2 were the absolute and sole owners. It was further pleaded that defendant Nos. 1 and 2 were in continuous and open possession of the land in possession since consolidation, as absolute owners.
 5. On the basis of the respective pleadings, the-following issues were framed by the learned trial Court:—
1. Whether the plaintiffs are heirs of Gurdas deceased and Jagiri deceased?
2. Whether the plaintiffs have locus standi to sue?
3. Whether suit is within time?
4. Whether suit is bad for non-joinder of necessary parties?
5. Whether plaintiffs are estopped by act and conduct and admission to relief?
6. Relief.
6. After considering the evidence led by the parties, the learned trial Court returned a finding that the suit for possession in respect of the share of land of Jagiri is beyond the period of limitation and thus, declined to grant relief to the extent of share of Jagiri to the plaintiffs. While considering the Khatauni Pamaish and land shown in the Jamabandi, it was found that there was a discrepancy in respect of land measuring 2 kanals 8 marlas and thus, the learned trial Court returned a finding that the plaintiffs are entitled to claim 1/10th share out of the land measuring 33 kanals 5 marlas of land. Consequently, the learned trial Court granted a decree for possession of the said share on payment of the proportionate sale consideration of Rs. 575/- to the defendants. The said judgment and decree was affirmed in first appeal as well.
 7. According to the plaintiffs, the following substantial questions of law arise for consideration:—
1. Whether the Courts below have erred in law by not framing an issue, essential for the just disposal of the matter, despite specific pleadings of the parties?
2. Whether the Courts below have misread the evidence while giving their findings that the present land holding of the appellants has been given to them during consolidation in lieu of the land originally claimed by the respondents?
 8. However, after hearing learned counsel for the appellants at some length, I do not find that any substantial question of law arises for consideration in the present second appeal.
 9. Learned counsel for the appellants has vehemently argued that the learned trial Court has not framed issue regarding the pleadings raised by the appellants that the appellants are absolute owners of part of the suit land, which has been allotted to them during consolidation. In the absence of any pleadings, the appellants have suffered serious prejudice and, therefore, the judgment and decree passed by the Courts below are not sustainable,
 10. The reliance of the learned counsel is on a Division Bench judgment of this Court in Darshan Singh v. The Hindustan Cold Stores and Refrigeration Pvt. Ltd., 1969 PLR 566. It has been held that it is the duty of the Court to read the plaint and written statement to frame issues. The said aspect cannot be disputed. The issues were framed by the learned trial Court on 4.9.1976. The matter remained pending before the trial Court for a considerable time, but the appellants have not sought modification of the issues as contemplated under Order 14 Rule 5 CPC. Even if the Court has failed to frame any issue, it was incumbent upon the appellants to draw attention of the learned trial Court to frame proper issues at the earliest. However, now in the second appeal, it is too late for the appellants to allege that the proper issues were not framed. Therefore, the judgment referred by the learned counsel provides no help to the appellants.
11. The appellants have raised a specific plea that the land was allotted in lieu of the land owned by the said defendants during consolidation proceedings, it was for the defendants to prove the said assertion raised in the written statement. It was for the defendants to seek the framing of the issue if the trial Court has failed to frame the same. Since, the appellants have failed to substantiate their pleadings in respect of the land allotted during consolidation in lieu of their self acquired property, therefore, I do not find that at the stage of second appeal any case is made out for interference. It cannot be said that there arises any substantial question of law in these circumstances.
12. The other substantial question of law again does not arise out of the findings recorded by the Courts below. In para No. 8 of the plaint, the plaintiffs have clearly pleaded that the land measuring 35 kanals 18 marlas was allotted to the defendants in lieu of their previous holdings including ½ share of the aforesaid 15 kanals 18 marlas. The plaintiffs have also produced the revenue record i.e. Naksha Hakdawar Exhibit P-8, Jamabandi Exhibit P-11 and Khatauni Pamaish Exhibit P-5. The learned trial Court has considered all the documents to return a finding that there is discrepancy in respect of land measuring 2 kanals 8 marlas and consequently granted benefit of such discrepancy to the defendant-appellants. It could not be pointed out that any evidence has been misread. In fact both the Courts have examined the entire record to return a finding that the land measuring 33 kanals 5 marlas is proved to be allotted in lieu of pre-con-solidation holding.
13. Thus, I do not find that any substantial question of law arises for consideration. Findings of fact recorded are sought to be disputed by reappreciation of evidence. It could not be pointed out that such findings are based upon misreading of evidence or suffer from any patent illegality and irregularity.
 14. Consequently, the present appeal is dismissed.

Print Page

No comments:

Post a comment