High Court
Case Details
SAO 5/2012 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the plaintiffs is directed against the judgment of remand dated 6th September, 2012 passed by the learned Additional District Judge (FTC) No.1, Tinsukia in Title Appeal No.4/2011, whereby and whereunder the first appe llate Court has while setting aside the judgment and decree dated 22nd December, 2010 passed by the learned Civil Judge, Tinsukia in Title Suit No.32/2008 reman ded the suit to the trial Court for fresh decision by framing 2(two) issues, nam ely:- (i) Whether there is cause of action in the present suit? (ii)
Legal Reasoning
Whether the plaintiffs are the joint owners of the suit property? [2] The petitioners as plaintiffs have instituted the aforesaid suit for declaration of right, title and interest and for recovery of khas-possessio n as well as permanent injunction against the present respondents as defendants, in respect of the land described in the schedule to the plaint contending inter alia that they have purchased the suit land from the owner, namely Pradyut Dutt a, by a registered instrument. It has further been contended that the defendant No.1, who is a poor old man and was at times helping the plaintiff in their bus iness, was allowed to reside in the Kutcha house situated in the north west corn er of the suit premises alongwith his wife, as he has no other shelter, who, how ever, taking advantage of the same, initially tried to put some bamboo fencing a nd construct a bamboo cottage on the eastern corner for which a proceeding under Section 144 Cr.P.C. was initially instituted. The plaintiffs, therefore, have filed the suit, as noticed above. The defendant have contested the suit by filing joint written st [3] atement contending inter alia that the suit is not maintainable; that the plaint iffs have no right to sue; that the suit is not properly valued; that the suit i s bad for non-joinder or mis-joinder of necessary parties and that there is no c ause of action. It has further been contended that the defendants are possessio n the suit land for the last about 30(thirty) years without any interruption as they were allowed to reside by the original owner, namely, Pradyut Dutta to look after the same. The defendants have also denied the knowledge of transfer of t he land by the original owner to the plaintiffs. [4] med the following issues for determination:- The trial Court on the basis of the pleadings of the parties fra (cid:28)1. Whether the suit is maintainable under the law and present form? 2. Whether the defendants on 20.3.08 tried to construct a bamboo cottage over the suit premises unauthorisedly and on 21.4.08 started illegal construction of a kutcha house on the suit land? 3. Whether the defendants are in possession of the suit land since last 25/30 years as permissive occupant under the original owner Sri Prodyut Dutta, or as permissive occupant under the plaintiff since 30.6.2007? 4. Whether the defendants are liable to be evicted from the suit premises as they are undesirable permissive occupant for denying the right, title and intere st of the plaintiffs? 5. Whether the plaintiffs have right, title and interest over the suit land? 6. Whether the plaintiffs are entitled for the decree for recovery of possess ion of the suit premises by evicting the defendants therefrom? 7. To what other relief/or reliefs, the parties are entitled under the law? (cid:29) The plaintiffs, in order to prove their case, have examined as m [5] any as 3(three) witnesses including the plaintiff No.1. The defendants have als o examined 4(four) witnesses. Both the parties have also proved certain documen ts in support of their respective claims. The trial Court upon appreciation of the evidence on record has [6] decreed the suit of the plaintiffs declaring the right, title and interest and f or recovery of khas-possession. Being aggrieved, the defendants preferred Title Appeal No.4/2011, which has been allowed by the first appellate Court by settin g aside the judgment and decree passed by the trial Court by holding that the tr ial Court’s judgment and decree is bad in law as the same has been passed withou t framing the aforesaid issues. Hence, the present appeal.
Legal Reasoning
I have heard Mr. G.N. Sahewalla, learned senior counsel for the [7] appellants/plaintiffs and Mr. G.P. Bhowmik, learned counsel for the respondents. [8] he appeal is taken up for disposal at the admission stage itself. As agreed to by the learned counsel appearing for the parties, t [9] It has been contended by the learned senior counsel for the appe llants that even assuming that the aforesaid 2(two) additional issues ought to h ave been framed by the trial Court, the first appellate Court ought not to have set aside the trial Court’s judgment and decree, in view of the provisions conta ined in Order 41 Rule 25 CPC, as the first appellate Court in that case, while f raming the additional issues, is required to direct the trial Court to record ev idence on the issues framed and to return the finding recorded therein to the fi rst appellate Court for deciding the appeal on merit. It has also been submitte d that it is apparent from the judgment and decree passed by the trial Court tha t though no issue relating to the cause of action has been framed, the same has been gone into by the trial Court on the basis of the evidences adduced by the p arties and hence, non framing of the issues did not cause any prejudice to any p arties. Therefore, according to the learned counsel, the first appellate Court ought not to have passed the impugned judgment and decree and instead ought to h ave decided the appeal on merit, on the basis of the evidences adduced by the pa rties. Relating to non framing of the issues regarding the joint ownership of t he plaintiffs, it has been submitted by the learned senior counsel that the same has been answered by the trial Court against the issue No.5 by holding that the plaintiffs are the joint owners, they having purchased the land from the origin al owners by registered instruments. Mr. Sahewalla has also submitted that the plaintiffs are not required to adduce any further evidences of the aforesaid iss ues. The learned counsel, therefore, submits that the judgment and decree passe d by the learned first appellate Court needs to be set aside and the first appel late Court may be directed to decide the appeal on merit. [10] Mr. Bhowmik, learned counsel for the respondents, on the other h and, has submitted that it is apparent from the judgment passed by the first app ellate Court that there is no evidence adduced by the parties relating to the ca use of action as well as the joint ownership of the plaintiffs, which necessitat ed the first appellate Court to pass the impugned judgment and decree remanding the case to the trial Court for fresh decision. Mr. Bhowmik, in view of the pro visions contained in Order 41 Rule 25 CPC, has, however, fairly submitted that t he learned first appellate Court instead of setting aside the judgment and decre e passed by the trial Court ought to have directed the trial Court to record evi dence on the additional issues framed and to sent the same to the appellate Cour t to decide the appeal on merit. [11] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the judgment and decrees passed by the learned Courts below. [12] It appears from the judgment and decree passed by the first appe llate Court that according to the first appellate Court, 2(two) additional issue s, as mentioned hereinabove, though were required to be framed, have not been fr amed, which caused prejudice to the parties. The first appellate Court, therefo re, has framed the additional issues and at the same time set aside the judgment and decree passed by the trial Court. The first appellate Court while passing the impugned judgment and decree, however, did not consider the pleading in the plaint to decide the issue relating to the cause of action and also whether the trial Court has decided the issue No.5 properly, which relates to right, title a nd interest of the plaintiffs, who claimed that they have purchased the land joi ntly from the original owner Pradyut Dutta. It is a settled position of law that non framing of the issue wo [13] uld not vitiate the judgment and decree passed, if the parties knew about the re spective case and led evidence on such facts giving rise to such issues. Order 41 Rule 25 CPC also requires that if the first appellate Court is of the opinion that additional issues, which are required to be framed have not been framed, i t can do so and after framing the additional issue sent it back to the trial Cou rt with a direction to take required additional evidence and to decide the issue and return the evidence to the appellate Court together with the finding thereo n and the reasons therefor within such time as may be fixed by the appellate Cou rt or extended by it from time to time. [14] In the instant case, the first appellate Court has set aside the judgment and decree passed by the trial Court on the ground of non framing of 2 (two) issues, one of which relates to cause of action, which is required to be d ecided on the basis of the pleadings in the plaint. The first appellate Court a lso did not consider existence of any evidence relating to the other issue, whic h according to the first appellate Court, ought to have been framed. The Court also did not notice the issue No.5 framed and the finding recorded by the trial Court in the said issue. Order 41 Rule 24 CPC provides that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgmen t, it may, after resetting 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 app ellate Court proceeds. In view of the aforesaid discussion, the judgment and decree dat [15] ed 6th September, 2012 passed by the learned Additional District Judge (FTC) No. 1, Tinsukai is set aside. The appeal is remanded to the first appellate Court f or deciding the same on merit. It is, however, made clear that it is open to th e first appellate Court to exercise the power under Order 41 Rules 24 and 25 of the CPC, if it so considers necessary. [16] urt on 2nd April, 2013. The parties are directed to appear before the first appellate Co [17] The appeal is accordingly allowed. No costs.