Judgment Reserved on 16.07.2025 Judgment Delivered on 06.08.2025 1 - Smt. Indu Mishra (In v. 1 - Lekhram Singh Sarwa S/o Late Kaushal Prasad Singh Sarwa, Aged About 74
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR FA No. 197 of 2024 Judgment Reserved on 16.07.2025 Judgment Delivered on 06.08.2025 1 - Smt. Indu Mishra (In Person) W/o Madhusudan Mishra, Aged About 52 Years R/o Prayag Kunj, Bajrang Chowk Boriya Road, Santoshi Nagar, Raipur (C.G.) Mob. No. 9425207076. ... Appellant versus 1 - Lekhram Singh Sarwa S/o Late Kaushal Prasad Singh Sarwa, Aged About 74 Years R/o House No. 56/563/1 Kaulashpuri Ward No. 56 Raipur 492001 (C.G.) Permanent R/o Village- Pakariya (Jhulal) Thana-Mulmula, District-Janjgir Champa (C.G.) Mob. No. 9981171680, 7000337010, 8889819821.. 2 - Gayatri Prasad Kashyap S/o Bhagwat Prasad Kashyap (Died And Deleted) Nil 3 - Smt. Vimla Singh Sarwa W/o Lekhram Singh Sarwa (Died And Deleted) Through Lrs. Nil 3.1 - Jyoti Chandravanshi W/o Rajesh Chandravanshi, R/o Bajrang Chowk, Mathpara, Raipur 492001, (C.G.) Mob. No. 9425558213. 3.2 - Kiran Verma W/o Deepak Verma, R/o Daganiya Raipur (C.G.) Through Rajesh Chandravanshi, Advocate, Advocate Room No.04, Bar Room Raipur 492001, C.G. 9425558213. 4 - Subhash Singh Sarwa S/o Lekhram Singh Sarwa, Aged About 30 Years R/o House No. 56/563/1 Kailashpuri Ward No. 56, Raipur 492001, (C.G.) Mob. No. 9669830051. 2 5 - Sunil Singh Sarwa S/o Lekhram Singh Sarwa, Aged About 28 Years R/o House No. 56/563/1, Kailashpuri Ward No.56, Raipur 492001 (C.G.) Mob. No. 9669187000. ... Respondents (Cause-title taken from the Case Information System) -------------------------------------------------------------------------------------------- Smt. Indu Mishra, Appellant in person is present. For Respondent No. 1 :- Shri Malay Shrivastava, Advocate For Respondents No. 3 to 5 :- Shri Amit Buxy, Advocate --------------------------------------------------------------------------------------------
Legal Reasoning
DB- Hon'ble Smt. Justice Rajani Dubey & Hon’ble Shri Justice Amitendra Kishore Prasad CAV Judgment Per, Amitendra Kishore Prasad, J. 1. This First Appeal, filed under Section 96 of the Code of Civil Procedure, 1908 (CPC), challenges the judgment and decree dated 24.08.2024, passed by the learned Trial Court in Civil Suit No. 102- A/2016. The Trial Court dismissed the plaintiff's suit for vacant possession and damages concerning land and a house situated in Khasra No. 2/6 and 2/23, admeasuring 0.032 hectares (total 3420 square feet), with house number 56/563/1 at Village Gabhrapara @ Tikrapara, Patwari Halka No. 114/45, Revenue Circle Raipur, Tehsil and District Raipur. 2. As per the plaintiff, she purchased the aforementioned property from Defendant No. 1 through a registered sale deed dated 13.12.2012, registered on 24.01.2013, for a total consideration of Rs. 19,05,500/-. After the purchase, the plaintiff claimed to have taken possession of the property. Subsequently, Defendant No. 1 requested permission to reside in the house for a certain period to construct his 3 own house, executing an affidavit dated 31.01.2013, agreeing to vacate the premises within one week of the plaintiff's demand. On 30.04.2016, the plaintiff demanded vacant possession, and Defendant No. 1 initially assured compliance within a week. However, he later allegedly made false complaints to various authorities, including the Superintendent of Police, Sub Divisional Officer, and Registrar, concerning the mutation of the plaintiff's name in revenue records. Subsequently, Defendant No. 1 allegedly handed over possession to Defendant Nos. 2 to 5. The plaintiff, through her advocate, issued a notice dated 27.06.2016, canceling Defendant No. 1's license to reside, effective midnight 31.07.2016, and demanding vacant possession by 01.08.2016. As Defendant Nos. 1 and 2 denied the notice and failed to vacate, the plaintiff filed the suit for possession and damages at the rate of Rs. 150/- per day from 01.08.2016. 3. The Defendant No. 1 denied the plaintiff's contentions, pleading that no sale deed was ever executed in the plaintiff's favor. He contended that the plaintiff's husband, being a deed writer, fraudulently procured the sale deed, rendering it void ab initio. He also claimed the suit was barred by limitation. Similarly, Defendant Nos. 3 & 5 denied the plaint averments, asserting that the sale deed dated 13.12.2012, registered on 24.01.2013, was a fraudulent document obtained by playing fraud on Defendant No. 1. They contended that since the sale deed itself was void ab initio, the plaintiff could not claim any right or title. They alleged that the 4 plaintiff's husband, being a deed writer, connived with attesting witnesses and others to fraudulently create the document to grab the property. They also pleaded that the suit was time-barred. 4. Based on the pleadings, the learned Trial Court framed the following issues: "1. क्या(cid:3) वा(cid:3)दि(cid:6)नी(cid:8) नी(cid:9) वा(cid:3)(cid:6) मका(cid:3)नी का(cid:12) ्ቚति(cid:15)वा(cid:3)(cid:6)(cid:16) ्ቅम(cid:3)(cid:18)का 01 से(cid:9) दि(cid:6)नी(cid:3)(cid:18)का 24.01.2013 का(cid:12) पं(cid:18)जी(cid:8)का(cid:22) (cid:15) तिवा्ቅया पं्ቔ का(cid:9) म(cid:3)ध्याम से(cid:9) ्ቅया कारनी(cid:9) से(cid:9) स्वात्वा ्ቚ(cid:3)प्(cid:15) कारनी(cid:9) का(cid:29) अधि का(cid:3)रिरणी(cid:8) है$ ? 2. क्या(cid:3) वा(cid:3)दि(cid:6)नी(cid:8), वा(cid:3)(cid:6) मका(cid:3)नी से(cid:9) ्ቚति(cid:15)वा(cid:3)(cid:6)(cid:16)गणी का(cid:12) तिनीष्का(cid:3)सिसे(cid:15) कार वा(cid:3)(cid:6) मका(cid:3)नी का(cid:3) रिरक्(cid:15) आधि पंत्या ्ቚ(cid:3)प्(cid:15) कारनी(cid:9) का(cid:29) अधि का(cid:3)रिरणी(cid:8) है$ ? 3. क्या(cid:3) वा(cid:3)दि(cid:6)नी(cid:8) का(cid:12) ्ቚति(cid:15)वा(cid:3)(cid:6)(cid:16)गणी ቛኋ(cid:3)र(cid:3) दि(cid:6)नी(cid:3)(cid:18)का 01.08.2016 (cid:15)का वा(cid:3)(cid:6) मका(cid:3)नी का(cid:3) रिरक्(cid:15) आधि पंत्या नीहै* से+पंनी(cid:9) से(cid:9), रिरक्(cid:15) आधि पंत्या ्ቚ(cid:3)प्(cid:15) है(cid:12)नी(cid:9) (cid:15)का वा(cid:3)दि(cid:6)नी(cid:8) 150/- ्ቚति(cid:15)दि(cid:6)नी का(cid:29) (cid:6)र से(cid:9) ्ቌति(cid:15)पं-ቔኌ(cid:15)/ र(cid:3)सि0 ्ቚ(cid:3)प्(cid:15) कारनी(cid:9) का(cid:29) अधि का(cid:3)रिरणी(cid:8) है$ ? 4. क्या(cid:3) वा(cid:3)दि(cid:6)नी(cid:8) का(cid:9) पं्ቌ म1 तिनीष्पं(cid:3)दि(cid:6)(cid:15) पं(cid:18)जी(cid:8)का(cid:22) (cid:15) तिवा्ቅया पं्ቔ दि(cid:6)नी(cid:3)(cid:18)का 24.01.2013 फजी3 वा का- टरसि5(cid:15) है(cid:12)नी(cid:9) से(cid:9) अवा$ एवा(cid:18) 0-न्या है$? 5. क्या(cid:3) वा(cid:3)दि(cid:6)नी(cid:8) का(cid:29) ओर से(cid:9) ्ቚस्(cid:15)9(cid:15) वा(cid:3)(cid:6) सेमया(cid:3)वाधि म1 है$ ? 6. सेहै(cid:3)या(cid:15)(cid:3) एवा(cid:18) ्ቤया ?” 5. The Trial Court, after recording evidence and considering the 5 arguments, dismissed the plaintiff's suit. It held that the plaintiff failed to prove her case. Specifically, the Trial Court noted that the sale deed (Ex.P/50) dated 13.12.2012 pertained to Khasra No. 2/6 only, whereas the suit was for Khasra Nos. 2/6 and 2/23, with a total area of 0.032 hectares or 3420 square feet. It further held that revenue records indicated one Bodhram as the title holder, while Defendant No. 1, who executed the sale deed, did not appear to be the owner. The Trial Court also found that it was not proven that the plaintiff came into possession and then handed it over to Defendant No. 1. Regarding Issue No. 4, it concluded that the sale deed dated 24.01.2013, was not executed in accordance with the law, leading to the dismissal of the suit. 6. The appellant herein/ plaintiff, appearing in person, submitted that she obtained possession after the due execution of the sale deed and handed over the entire consideration amount to Defendant No. 1, who then got the sale deed registered. She stated that Defendant No. 1 sought time to vacate, leading to an agreement where he was permitted to reside. She claimed that Defendant No. 1 initially took possession and then inducted other defendants, assuring her he would vacate once he arranged alternative housing, but failed to do so despite repeated requests. She further submitted that her name was mutated in municipal and revenue records, which 6 Defendant No. 1 did not object to at the time of mutation. Subsequently, Defendant No. 1, on external advice, refused to hand over possession, compelling her to file the suit. 7. On the other hand, learned counsel for the respondents herein vehemently oppose the submission made by the appellant in person and submit that the appellant's claims are entirely based on a fraudulent and fabricated sale deed, which Defendant No. 1 never genuinely executed and from which no consideration was received. Therefore, the plaintiff acquired no valid title, and her assertion of taking possession is false. There was no legitimate agreement for Defendant No. 1 to reside after a sale, as no valid sale occurred. Any mutation of the plaintiff's name was a result of this underlying fraud and was done without Defendant No. 1's proper knowledge or consent, with objections raised upon discovery. They further contend the suit should be dismissed as the plaintiff has no lawful claim over the property. 8. The plaintiff, as PW-1, examined herself and exhibited several documents, including Sale deed (Ex.P/1), Affidavit dated 31.01.2013 executed by Defendant No. 1 (Ex.P/2), Affidavit dated 01.03.2013 given by Defendant No. 1 (Ex.P/3), Electricity bills (Ex.P/4 and Ex.P/5), Receipt for mutation (Ex.P/6), General notice published in Dainik Deshbandhu newspaper (Ex.P/7), Mutation documents in the plaintiff's name (Ex.P/9), Tax receipts of the Municipal Corporation (Ex.P/10 to Ex.P/12), Affidavit dated 01.03.2013 sworn by Defendant No. 1 Lekhram Singh (Ex.P/13), Document by which original 7 documents were taken back from the Court of Additional Tehsildar (Ex.P/14), Document dated 18.11.2015 by which revenue tax was determined (Ex.P/15), B/1 of the land in question in the name of Defendant No. 1's wife (Ex.P/16), Certified copy of Khasra Panchshala Form P/2 (Ex.P/17), Photographs of the house in question, stated to be in the name of Defendant No. 1's wife and handed over to the plaintiff (Ex.P/18 to Ex.P/23), Document for paper publication in Dainik Bhaskar regarding mutation notice (Ex.P/24), Document indicating Defendant No. 1's complaint was returned by the Police as a non-interference case (Ex.P/25). 9. We have heard the appellant appearing in person, learned counsel for the respondents and perused the material available on record as well as the documents annexed with the appeal carefully. 10. A crucial aspect of this case is that Defendant No. 1, the executant of the sale deed, filed a written statement but chose not to adduce any evidence or enter the witness box. Defendant No. 1 would have been the best person to dispute the sale deed as alleged in his written statement. His failure to testify bears material significance. 11. During cross-examination, the plaintiff admitted that the map annexed with the plaint did not show the length and width of the house, and she filed a certified copy of the sale deed dated 13.12.2012, as the original was submitted in another case. She stated that the total land and house area was 3420 square feet, with construction on 650 square feet. She acknowledged that in B/1 8 annexed with the sale deed, Chouram was shown as the landholder, but clarified that Defendant No. 1 informed her that he had purchased the property. Despite lengthy cross-examination, nothing material was elicited to disprove the execution of the sale deed. She clearly stated that Ex.P/2 shows Choaram Nayak as the seller and Lekhram (Defendant No. 1) as the purchaser, pertaining to Khasra No. 3/8 admeasuring area 1725 square feet. She confirmed that mutation was effected in her name for both the land and house. The defendants failed to demonstrate that the sale deed was fraudulently executed or that consideration was not received. 12. Madhusudan Mishra, the plaintiff's husband, was also cross- examined. He categorically stated that Defendant No. 1, a teacher, approached him with a proposal to sell his land and house. The entire transaction, including the total sale consideration of Rs. 19,05,500/- was settled between his wife and Defendant No. 1, and cash payment was received by Defendant No. 1. He was present during the execution of the sale deed but did not sign as a witness. The lengthy cross-examination by Defendant No. 1 could not disprove that the sale deed was a fraudulent document or that it was prepared by playing fraud by this witness, who was alleged to be a scribe. 13. Since Defendant No. 1 and other defendants did not examine themselves, the case largely rests on the pleadings and evidence produced by the plaintiff. While it is settled law that the plaintiff must prove their case and cannot merely rely on the weakness of the defendants, it is equally settled that the onus to 9 prove fraud or any other allegation regarding the due execution of a document lies upon the person who alleges it. 14. The framing of issues in a civil suit is paramount. It is the stage where specific points of contention are identified, guiding the court in determining relevant statements, evidence, and arguments, ultimately leading to a just judgment. The Court has a primary responsibility to frame clear and precise issues based on the pleadings, and lawyers are expected to assist. Proper issues ensure the trial focuses on relevant matters and guide parties on the evidence needed. 15. The Hon’ble Supreme Court has consistently emphasized the importance of proper framing of issues under Order XIV of the Code of Civil Procedure, 1908 (CPC). It is the primary duty of the Court to frame correct and accurate issues. The Court must apply its mind diligently to understand the facts and identify the real points of controversy. The Hon’ble Supreme Court in Makhan Lal Bangal v. Manas Bhunia and Others (AIR 2001 SC 490), dealing with election petitions (which are akin to civil trials), observed that the stage of framing issues is important as it determines the scope of the trial. The relevant para is quoted hereinbelow:- “An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as oh 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, 10 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 XIV 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 o(her should form the subject of 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 11 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.” 16. Further, the Trial Court, in framing issues, failed to frame proper issues for the adjudication of the case. Defendant No. 1, the executant of the sale deed, made specific allegations of fraud played by the plaintiff's husband in the execution of the sale deed. The onus to prove this was on Defendant No. 1. However, by not entering the witness box, he failed to prove the allegation of fraud, which is crucial for deciding this case. The Trial Court further failed to frame proper 12 issues specifically addressing the allegation of fraud by Defendant No. 1 in the execution of the sale deed. Issue No. 4 concerned the sale deed dated 24.01.2013, being null and void due to fraudulent execution. However, while deciding this issue, the Trial Court did not adequately consider the aspect of fraud played by the plaintiff's husband; there is no mention of it in its findings on this issue. 17. The Hon’ble Supreme Court in the matter of Rattan Singh v. Nirmal Gill (2020 SCC OnLine SC 936) has specifically stated that for invoking Section 17 of the Limitation Act (related to fraud), the existence of fraud and its discovery must be pleaded and duly proved, and the initial burden is on the party challenging a registered document on grounds of fraud, especially if it bears their signature. The relevant paras of the said judgment are quoted hereinbelow:- “78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. 79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding 13 of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is exfacie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of nonexistence of fraud. The concurring findings recorded by the trial Court and the first appellate Court that the documents were executed by the plaintiff belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. 80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. 14 any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.” 18. The principle governing field in deciding First Appeal under Section 96 of CPC has been discussed in the matter of Malluru Mallappa (D) thr. Lrs.vs. Kuruvathappa & Ors. reported in AIR 2020 SC 925 which has been held as under:- “11. Section 96 of the CPC provides for filing of an appeal from the decree passed by any court exercising original jurisdiction to the court authorized to hear the appeals from the decisions of such courts. In the instant case, the appeal from the decree passed by the trial court lies to the High Court. The expression 'appeal' has not been defined in the CPC. Black's Law Dictionary (7th Edn.) defines an appeal as "a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority." It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. 14.It is a settled position of law that an appeal is a continuation of the proceedings of the original court. 15 Ordinarily, the appellate jurisdiction involves a re- hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re- consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.1, Madhukar and others v. Sangram and Others2, B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another3, H. K. N. Swami v. Irshad Basith (Dead) By Lrs.4 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar5"]. 15.A first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. 16.Order XLI Rule 31 of the CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order XLI Rule 31 of the CPC is as under: - 1 2 3 4 5 (2001)3SCC179 (2001)4SCC756 (2011)15SCC476 (2005)10SCC243 (1980)4SCC259 16 "31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 17.In Vinod Kumar v. Gangadhar6 this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under:- "15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530: (2010) 4 SCC (Civ) 808], this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530- 31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; 6 (2015)1SCC391 17 (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari ((2001) 3 SCC 179: (2001) 1 SCR 948], SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.)" 18. In Shasidhar and Ors. v. Ashwani Uma Mathad 18 and Anr.7, it was held as under:- "21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law." 19. As far as the question regarding resettlement of issues by the appellate Court is concerned, the same would be governed by the provisions of Order 41 Rule 24, 25 and 26 of the CPC which are as under :- "24. Where evidence on record sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. 25. Where Appellate Court may frame 7 (2015)11SCC269 19 issues and refer them for trial to Court whose decree appealed from. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time 26. Findings and evidence to be put on record: Objections to finding. (1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding. (2) Determination of appeal. After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.” 20 20. Further, the Hon’ble Supreme Court in the matter of Sitaram v. Radha Bai and others, AIR 1968 SC 534 has pointed out that the trial Court should not determine an issue not arising on the pleadings of the parties. Therefore, under the provisions of Order 41, Rule 25 of CPC if a particular issue arises on the pleadings of the parties which the trial Court has omitted to frame and determine and if in the opinion of the lower appellate court the decision of that issue is essential for the decision of the case on its merits, the appellate court will proceed to frame an issue and remand the case for trial under the provisions of Order 41, Rule 25 of the CPC. 21. In the present case, this Court does not find it appropriate to pronounce the judgment on the basis of material available on record due to lack of proper issues and evidence. Rather the matter is governed by Rule 25 of Order 41 of the CPC, as we find that the trial Court has omitted to frame vital and trite issues which were essential to the right decision of the suit upon merits. It is for this reason this Court is inclined to remand the matter for framing of appropriate fresh issues on the basis of pleading of the parties and to direct the trial Court to decide the same while granting liberty to lead evidence in the newly framed issues. 22. Reverting to the specifics of the current appeal, the trial Court's judgment suffers from fundamental legal flaws, primarily arising from its approach to framing issues and assessing the burden of proof regarding fraud. The first critical error lies in the improper expression of the issues for decision. The issues framed by the Trial Court were inadequate; they failed to precisely identify and describe 21 the core points of contention between the parties. Specifically, a central dispute in this case revolved around the allegation of fraud in the execution of the sale deed. Had the Trial Court formulated appropriate and direct issues concerning this vital claim, it would have guided the parties to lead specific evidence on whether fraud was indeed committed. This deficiency in issue framing constitutes a grave error of law, as it prevented a focused and thorough examination of a pivotal aspect of the suit, directly impacting the fairness and correctness of the trial. Secondly, the non-appearance of the defendants, particularly Defendant No. 1, in the witness box is highly significant. Defendant No. 1 explicitly alleged in his written statement that the sale deed was fraudulently executed by the plaintiff's husband. However, despite making such a serious accusation, he failed to step into the witness box to substantiate this claim under oath. It is a well-established principle of law that the primary onus to prove an allegation of fraud rests squarely on the party making that allegation. By not testifying and providing evidence to support his assertion, Defendant No. 1 utterly failed to discharge this crucial burden of proof. His written statement alone, without corroborating oral testimony and cross-examination, cannot be considered sufficient to establish fraud. 23. Accordingly, taking recourse to Order 41 Rule 25 of the CPC, this Court finds it appropriate to remand the matter back to the trial Court. The judgment and decree dated 24.08.2024, passed by the Trial Court, is hereby set aside. The trial Court is directed to frame 22 issues afresh on the basis of the pleadings of the parties. The trial Court shall direct the parties to lead evidence on the basis of the newly framed issues and after providing due opportunity of hearing to all parties, shall decide the suit afresh in accordance with the law. 24. The trial Court is further directed to issue notice to the parties within one month from the date of receipt of the records, as the plaintiff appeared in person before this Court and, being a lady, appears not fully conversant with the technicalities of the case. No specific date should be fixed immediately upon receipt of records; instead, proper notice should be issued. Given that the suit was filed in the year 2016, the trial Court is expected to decide the matter expeditiously in accordance with the law. 25.
Decision
Accordingly, the appeal is allowed to the above extent. No order as to cost(s). sd/- sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha