Friday, 1 May 2020

Whether court can presume that there was partition if one co-owner is in possession of part of property for long time?

 The second plea relates to the fact that there has been demarcation of the shares and the parties have been occupying their respective demarcated areas since 1954. This plea is also misplaced.

19. I may note that there is no averment in the written statement that a partition took place and the parties subsequent to the partition have continued to occupy the area that fell to their share. There are also no documents filed by any of the defendants to support the plea that any partition took place amongst the co-owners or that the parties agreed that the demarcated area that they are occupying, are their respective shares from the property in question.

20. It also cannot follow that mere long occupation of a particular area by a co-owner implies that a partition has taken place amongst the co-owners.

21. Reference in this context may be had to the judgment of the Supreme Court in Chinthamani Ammal vs. Nandagopal Gounder and Another, MANU/SC/7126/2007 : (2007) 4 SCC 163 where the Supreme Court held as follows:-

"17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefore."

22. Hence, being in possession of a part of the property does not ipso facto mean that any partition has taken place. In fact no partition has been pleaded in the written statement. Hence, mere long occupation of certain areas by a co-owner does not debar the filing of a partition suit.

IN THE HIGH COURT OF DELHI

CS (OS) 224/2017, IAs. 6234 and 12851/2017

Decided On: 13.03.2020

Sushil Kumar Agarwal  Vs.  Ravi Narayan Agarwal 

Hon'ble Judges/Coram:
Jayant Nath, J.




1. This suit is filed by the plaintiff seeking partition of the suit property bearing No. 18, Doctors Lane, Gole Market, New Delhi. A preliminary decree of partition is sought determining the shares of the Plaintiff No. 1 & Defendant no. 9 as 1/4th each; the shares of Plaintiff Nos. 2, 3 and 4 as 1/12th each; the shares of defendants No. 1 to 5 as 1/24th each and the shares of Defendant Nos. 6-8 as 1/72nd each.

2. The case of the plaintiff is that the father of plaintiff No. 1 Shri Narayan Agarwal acquired huge wealth during his life time. The suit property was bought by Sale Deed dated 7.4.1942 in the name of his other son Shri Chand Ratan Agarwal. The father Shri Narayan Agarwal died in January 1947 leaving behind his wife Mrs. Mohandevi and four sons, namely, Late Shri Chand Ratan Agarwal, Late Shri Bishanswarup Agarwal, Late Shri Suraj Narayan Agarwal and plaintiff No. 1 as his legal heirs. The dispute here pertains only to the suit property as it is stated that other assets forming part of the estate of the deceased have been distributed except the suit property which is a joint property of the sons to the exclusion of the mother.

3. It is further stated that on 5.3.1962 on the intimation of the sons of late Shri Narayan Agarwal the property was mutated jointly in their names. Reliance is also placed on a declaration deed dated 31.12.1960 said to have been executed by the four brothers where they have declared that they are the owners of the said property in equal shares i.e. 1/4th share each.

4. Late Shri Chand Ratan Agarwal is said to have died intestate on 15.3.2006 leaving behind eight legal heirs including his wife, five daughters and two sons. All her legal heirs executed a relinquishment deed on 10.2.2012 by which they relinquished their 1/8th share of the 1/4th share of late Shri Chandratan Agarwal in the suit property in favour of Defendant No. 9 Shri Rajesh Agarwal and as such defendant No. 9 has 1/4th share in the suit property.

5. Late Shri Bishanswarup Agarwal died intestate on 28.4.1992 leaving behind three sons including late Shri Prakash B. Agarwal and plaintiffs No. 2 and 3 and four daughters. Hence, the heirs were entitled to 1/7th share of late Shri Bishanswarup Agarwals 1/4th share of the suit property. The daughters executed a relinquishment deed dated 15.07.1994 in favour of the brothers. Consequentially late Shri Prakash Agarwal, plaintiff No. 2 and plaintiff No. 3 became entitled to 1/12th share in the suit property. The daughters of late Shri Bishanswarup Agarwal have been impleaded as defendants No. 10 to 13. Late Shri Prakash Agarwal died on 2.12.2011 leaving behind a Will dated 9.12.2008 whereby he bequeathed his 1/12th share in the suit property to his son Dhiraj Agarwal. Consequentially, Shri Prakash Agarwal's 1/12th share now belongs to plaintiff No. 4. Hence, late Shri Bishanswarup Agarwal's 1/4th share now belongs to the plaintiffs No. 2, 3 and 4 each getting 1/12th each.

6. Late Shri Suraj Narayan Agarwal died intestate on 25.01.2001 leaving behind defendants No. 1 to 5 and late Shri Raj Kumar each entitled to 1/6th share of late Shri Suraj Narayan's 1/4th share in the suit property. On the death of late Shri Raj Kumar his share devolved in equal part to his children defendants No. 6 to 8 who were entitled to 1/72nd share in the suit property. Hence, it is pleaded that defendants No. 1 to 5 are entitled to 1/24th share and defendants No. 6 to 8 are entitled to 1/72nd share in the suit property.

7. Plaintiff No. 1 being the son of late Shri Narayan Agarwal is entitled to 1/4th share in the suit property.

8. It is stated that since 2014 the plaintiffs alongwith other members of the family have repeatedly approached the defendants so that the suit property could be sold and proceeds could be divided amongst the respective independent HUFs/parties. On 14.3.2017 a legal notice was served upon defendant No. 1 for partition of the suit property. Defendant No. 1 has refused to co-operate in the partition.

9. Other than defendants No. 1 and 4 none of the defendants have opposed the present suit.

10. Defendant No. 1 has filed a written statement. Following objections have been taken in the written statement:-

(i) In view of communication dated 2.9.1997 and 5.8.2013 issued by L & DO the property cannot be subdivided by metes and bounds as there is a prohibition to that effect in the said communication.

(ii) It is pleaded that the plaintiffs are aware that the property is incapable of division by metes and bounds. The plaintiffs are not concerned with the partition of the property but only seek to sell the property against the interest of defendant No. 1. It is pleaded that under the guise of the present suit the plaintiffs are actually seeking eviction of defendant No. 1 from the agreed demarcated area where defendant No. 1 has been residing since 1954.

(iii) It is further pleaded that the present suit is liable to be dismissed as all co-owners are in possession (physical and/or constructive) of the demarcated portion in the suit property. Hence, the suit property is already partitioned between the co-owners of the suit property.

(iv) It is claimed that the daughters of late Shri Chand Ratan Agarwal and late Shri Bishanswarup Agarwal have no share in the property in question. It has also been denied that defendant No. 2 the widow of late Shri Suraj Narayan Agarwal and defendant No. 5 the daughter of late Shri Suraj Narayan Agarwal has any right or share in the property in question.

(v) It is also claimed that the actual eligible co-owners in the suit property are Shri Sushil Kumar Agarwal HUF, Shri Bishanswarup Agarwal HUF, Shri Chand Ratan Agarwal, HUF and late Shri Suraj Narayan Agarwal HUF, each having 1/4th share.

11. Defendant No. 4 has filed a written statement and he has reiterated the submissions taken by defendant No. 1, he has denied the rights of the female heirs to any share in the property in question.

12. Defendants No. 3, defendants No. 6 to 8 and defendants No. 9 to 13, respectively have filed written statements supporting the case of the plaintiff.

13. The matter was fixed for framing of issues. On 6.8.2018 this court passed the following order:-

"Learned counsel appearing for the plaintiff submits that the only defendants who are opposing partition are defendant No. 1 and 4. He further submits that in the written statement of defendant No. 1 there is a clear admission that the plaintiffs are entitled to respective shares in the suit property.

Learned counsel appearing for defendant No. 1 has raised the following objections:-

(i) He submits that the HUF of respective parties has also to be impleaded as a necessary party.

(ii) He submits that there has been demarcation of shares and parties are occupying the demarcated areas since 1954.

(iii) He further submits that defendants No. 5, 6 and 8 being lady members are not entitled to any share in the suit property.

List for framing of issues and arguments on 29.10.2018."

14. I have heard learned counsel for the parties on the aspect as to whether any issue arises based on the pleadings of the parties.

15. Learned counsel for the plaintiff has reiterated that defendant No. 1 more or less admits everything in his written statement. There is no substantial defence raised and this court may pass appropriate preliminary decree as no issues need to be framed. He further states that defendant No. 1 is only using dilatory tactics to raise frivolous objections as he is occupying a much larger portion of the suit property since a long time. He does not wish the partition to take place for the said motivated purpose.

16. Learned counsel for defendant No. 1 has reiterated the aforenoted submissions that were noted by this court in its order dated 6.8.2018. He has reiterated that the plaint admits the fact that the properties are owned by the respective HUFs. He also submits that in the legal notice dated 14.3.2017 sent by the plaintiff it is admitted that the properties are HUF properties. It is reiterated that defendant No. 5 the sister of defendant No. 1 has no rights in the property in question. Reliance is placed on judgment of the Supreme Court in the case of Prakash and Others vs. Phulavati and Others, MANU/SC/1241/2015 : (2016) 2 SCC 36.

17. I may look at the contentions of the said defendants No. 1 and 4. As far as the first plea raised by learned counsel for defendant No. 1 is concerned, namely, that the HUF of respective parties have to be impleaded as necessary party, the plea is misplaced. The respective alleged coparceners of all the HUFs are admittedly parties to the present suit. Necessary and proper parties have been duly impleaded. That apart, as elaborated below the plea of there being an HUF is a vague and unsubstantiated submission which cannot be accepted. This plea is misplaced.

18. The second plea relates to the fact that there has been demarcation of the shares and the parties have been occupying their respective demarcated areas since 1954. This plea is also misplaced.

19. I may note that there is no averment in the written statement that a partition took place and the parties subsequent to the partition have continued to occupy the area that fell to their share. There are also no documents filed by any of the defendants to support the plea that any partition took place amongst the co-owners or that the parties agreed that the demarcated area that they are occupying, are their respective shares from the property in question.

20. It also cannot follow that mere long occupation of a particular area by a co-owner implies that a partition has taken place amongst the co-owners.

21. Reference in this context may be had to the judgment of the Supreme Court in Chinthamani Ammal vs. Nandagopal Gounder and Another, MANU/SC/7126/2007 : (2007) 4 SCC 163 where the Supreme Court held as follows:-

"17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefore."

22. Hence, being in possession of a part of the property does not ipso facto mean that any partition has taken place. In fact no partition has been pleaded in the written statement. Hence, mere long occupation of certain areas by a co-owner does not debar the filing of a partition suit.

23. Coming to the third plea about lady members not being entitled to any share in the suit property, in my opinion, the argument is also misplaced. Another plea that is raised in this context is a plea of the property being HUF property.

24. The defendant No. 1 is making contradictory submissions and statements. At one place it is pleaded that partition has already taken place and parties are occupying their respective areas which were demarcated and have fallen to their shares since 1954. On the other hand in paragraph 14 of the written statement defendant No. 1 pleads that the actual share of eligible co-owners is 1/4th to Sushil Kumar Agarwal, HUF 1/4th to Shri B.S. Agarwal, HUF, 1/4th to Shri Chand Ratan Agarwal, HUF and 1/4th to Shri Suraj Narayan Agarwal. Hence, he claims that the respective HUFs of the four sons of late Shri Narayan Agarwal are the joint owners of the properties.

25. I may only note that existence of the HUF is neither pleaded nor in any manner sought to be shown by any documentary evidence. In fact defendant No. 1 has not filed any documents. I may note that it is settled position of law that as to how a property came be an HUF has to be stated so in the pleadings.

26. In this context reference be had to the judgment of a Coordinate Bench of this Court in Sagar Gambhir Vs. Sukhdev Singh Gambhir, MANU/DE/1099/2016 : 2016 (159) DRJ 718. In the said case the coordinate bench while relying upon another judgment dated 05.05.2016 being CS(OS) 683/2007 titled Mrs. Saroj Salkan Vs. Mrs. Huma Singh & Others quoted from the said judgment as follows:

"6. What is an HUF, how does an HUF come into existence....

8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 and which paras read as under:-

"7....

(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no. 1 being 'ancestral' properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created i.e. whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter.

....

11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e. whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as 'the Benami Act') and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub Sections (1) and (2) of Section 4 of the Benami Act.

12. This Court is flooded with litigations where only self-serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded.

."

27. The above judgment of the Single Bench of this court was upheld by the Division Bench of this court in an appeal titled as Sagar Gambhir vs. Sukhdev Singh Gambhir, MANU/DE/0541/2017 : (2017) 241 DLT 98 (DB). The Division Bench noted as follows:-

"13. In the decision reported as MANU/SC/0714/2011 : 2011 (6) SCALE 677 Ramrameshwari Devi vs. Nirmala Devi in para 52(a) the Supreme Court highlighted that pleadings are foundation of the claim by a party and it is the bounden duty and obligation of every trial Judge to carefully scrutinize the pleadings and the documents on which the pleadings are predicated. In the decision reported as MANU/SC/0725/1998 : AIR 1999 SC 1464 D.M. Deshpande vs. Janardhan Kashinath Kadam, the Supreme Court highlighted the relevance of pleading material facts. In the decision reported as MANU/MH/0260/1982 : AIR 1982 Bom. 491 Nilesh Construction Co. vs. Gangu Bai, with reference to a plea of tenancy, the Bombay High Court highlighted that pleadings must disclose the details with reference to the day when the tenancy was created and the exact nature thereof. In the decision reported as MANU/SC/8083/2006 : AIR 2006 SC 1828 Mayar (HK) Ltd. & Ors. vs. Owners & Parties Vessel MV Fortune Express, the Supreme Court highlighted the requirement to read pleadings meaningfully in view of the relied upon documents and see whether the same are not illusory or vexatious."

It is clear that as already noted above, defendant No. 1 in the written statement has not elaborated as to how he claims that the property is an HUF property in the hands of the four sons of late Shri Narayan Agarwal.

28. It follows that other than a bald averment in the written statement there is nothing to show that the property in question vests in the HUF's of the respective parties. On the other hand the documents filed by the plaintiffs which have been admitted by defendants No. 1 and 4 accept the status of the suit property as that of the self owned property of the four sons of late Shri Narayan Agarwal.

29. I may note that on 05.03.1962 L & DO had written to the parties/predecessors stating that the properties have been mutated in the joint names of the four brothers. There is no reference to the mutation being in favour of any HUF. The mutation has been done in the individual names. I may note that defendant no. 1 and defendant no. 4 have admitted this letter in admission/denial.

30. What follows is that the parties have regularly dealt with L & DO claiming the properties to be in individual names right since 1962. At no stage have any of the parties including defendants No. 1 and defendant No. 4 raised any objections to the mutation in the name of individuals.

31. I may also deal with another contention of defendant No. 1 to support his plea of HUF. In the course of arguments much reliance was placed on paragraph 5 of the plaint to plead admission by the plaintiff. The plaintiff has in the said para averred as follows:-

"5. That, in 1947, by an oral agreement, subsequently recorded in a Declaration Deed on 31/12/1960, all the five heirs and legal representatives of the Deceased divided the joint family property consisting of the estate of the Deceased amongst themselves, save and except the Suit Property, which remained as the joint property of the Sons, to the exclusion of their mother now deceased, who received her full share otherwise. Each of the Sons declared their respective shares as their HUF property i.e.; 1/4th share of Plaintiff No. 1 was assessed to wealth tax as Plaintiff No. 1's HUF, and the other 3 sons also formed their respective HUFs and were assessed accordingly."

32. A perusal of the above para shows that what the para says is that other than the suit property the rest of the properties of late Shri Narayan Agarwal by an oral agreement divided the estate of the deceased amongst themselves. Respective owners who received the assets pursuant to the oral agreement have taken their respective properties as HUF properties and assessed the same to Wealth Tax. Accordingly, this para of the plaint does not support the plea of Defendant No. 1 that the suit property belongs equally to the HUF's of the respective brothers as is sought to be pleaded.

33. The admitted fact is that the suit property was not bought in the name of Shri Narayan Agarwal but was bought in the name of his son Shri Chand Ratan Agarwal. The property continued to remain undivided despite partition of the rest of the estate of Shri Narayan Agarwal. The LRs of Late Sh. Narayan Agarwal remained co-owners of the said property. There is in fact as noted above, nothing to show that the property was ever treated as an HUF property by the four brothers i.e. the sons of Shri Narayan Agarwal. It is only a desperate defence raised by defendant No. 1 to prolong the suit. As has been pointed out by learned counsel for the plaintiff, it is defendant No. 1 who is occupying a major portion of the suit property and is hence adopting dilatory tactics to delay the partition.

34. Coming to the main plea about the lady members of the family, the plea raised by defendant No. 1 in the written statement in paragraph 9 is that the daughters of late Shri Chand Ratan Agarwal, in paragraph 10 that the daughters of late Shri Bishanswarup Agarwal do not have a share in the suit property and also the plea in para 12 of the written statement that defendants No. 2 and 5 do not have a share in the suit property is misplaced and contrary to the statutory provisions, namely, the Hindu Succession Act, 1956. Even assuming that the HUF of the father of defendant No. 1 Shri Suraj Narayan Agarwal, HUF had a share in the suit property as has been vaguely pleaded by defendant No. 1 in the written statement, Shri Suraj Narayan Agarwal had died intestate on 25.1.2001. Assuming that the unamended provisions of section 6 of the Hindu Succession Act apply the defendants No. 2 and 5, namely, the mother and sister of defendant No. 1 would still have a right in the suit property. Reference may be had to section 6 of the Hindu Succession Act as it stood prior to the amendment of 2005. Same reads as follows:-

"Section 6 prior to its amendment in 2005 reads as follows:

"6. Devolution of interest in coparcenary property.--When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.--For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

35. In the above context reference may be had to the judgment of the Supreme Court in the case of Uttam vs. Saubhag Singh and Others, MANU/SC/0256/2016 : (2016) 4 SCC 68 where the Court spelt out the legal position as it existed prior to the amendment in the Hindu Succession Act of 2005. The relevant para reads as follows:-

"18.

The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:

"....

(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants."

36. Hence, in terms of the unamended section 6 of the said Act on the death of Shri Suraj Narayan Agarwal on 25.1.2001 his alleged share in the HUF would devolve through intestate succession and not by survivorship. The said defendants No. 2 and 5 will continue to have a share in the suit property in terms of the said statutory provisions. The defendant No. 1 by pleading that defendants No. 1 and 5 have no share in the said property is only making vague submissions which are on the face of it are contrary to the statutory provisions. This plea of defendant No. 1 that defendant No. 2 and 5 have no share in the suit property is vague and is completely without merits.

37. It is manifest that the parties are entitled to their share in the suit property as per Section 8 of the Hindu Succession Act as per details as stated in the plaint. The respective shares are as stated in para 14 of the plaint. There is no fact averred in the written statement that substantially controverts this para of the plaint.

38. The matter is at the stage of framing of issues. However, in my opinion, the issues are only to be framed when a material proposition is confirmed by one party and denied by the other. A suit can be disposed of if it appears that the parties are not at issue on any material question of law or of fact. In this context reference may be had to the judgment of the Supreme Court in the case of Makhan Lal Bangal vs. Manas Bhunia and Others, MANU/SC/0003/2001 : (2001) 2 SCC 652 where the court held as follows:-

"19. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. 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, correctly determining the real points in controversy which need to be decided. 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 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. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. 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."

39. Keeping in view the above discussions, as stated, it is manifest that the parties are not at variance on any material proposition of law or fact, therefore, no issues can be framed.

40. A preliminary decree is passed holding the share of the parties to be in terms of para 14 of the plaint.

41. List before the Roster Bench for further proceedings on 03.04.2020.


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