Mulakh Raj v. Thuru Ram & Ors.

Ms. Alka Sarin, Advocate for the plaintiff/appellant. Mr. R.N. Moudgil, Advocate for the defendants/respondents. *** MAHESH GROVER. J. (Oral) This Regular Second Appeal is directed against the judgment & decree dated 11.03.1985 passed by the District Judge, Gurdaspur, whereby the appeal filed by defendants-respondents against the judgment and decree dated 18.2.1984 passed by Sub-Judge Ist Class, Pathankot was allowed and the suit of the plaintiff-appellant was dismissed. The facts of the case may first be briefly noticed. The plaintiff/appellant had filed a suit for possession pleading therein that he was owner of the suit property by virtue of the sale deed dated 14.09.1976 executed in his favour and that the respondents in collusion with the Patwari had got some land mutated in their favour on the basis of some wrong entries to claim their possession on the part of the suit property to the extent of 15 marlas which entry came to the notice of the appellants in 1977 and they were thus constrained to file the suit for declaration to the effect that the said entries be declared null and void. The prayer was also R.S.A No. 1469 of 1985 -2- made for restraining the respondents from interfering in the peaceful possession of the appellant. The said suit was dismissed on 24.07.1978 under the provisions of Order 9 Rule 8 of the Code of Civil Procedure (for short 'the Code') which was followed by an application moved by the appellant for restraining the respondents from interfering in the peaceful possession, which was declined on 22.04.1981. The appeal against the said order was also dismissed on 03.04.1982. The appellant then filed present suit for possession on 07.04.1982 from which the instant appeal has arisen. It was alleged by the appellant in the suit that the respondents have encroached upon the land after the dismissal of earlier suit and, thus, prayed that possession of the suit property be got delivered to him. The respondents contested the suit and pleaded that the suit is barred under Order 9 Rule 9 of the Code as also under the provisions of Order 2 Rule 2 of the Code. They also set up a plea of adverse possession and defended the possession as being legitimate The trial Court framed the following issue. “1. Whether Sh. Ramesh Chander is General Power of Attorney holder of Sh. Mulakh Raj plaintiff and is competent to file the present suit ?OPP

2. Whether the plaintiff has purchased the suit land vide sale deed dated 14.9.76 and is in possession of the suit land ?OPP

3. Whether the defendants have become owners by way of adverse possession ?OPD

4. Whether the suit land is not a part of khasra No.2R/26 ?OPD

5. Whether the suit is barred U/O2 Rule 2 CPC ?OPD 5-A Whether the suit property is properly valued for purposes of court fee ?OPP” Thereafter, the suit was decreed in favour of the appellant holding that he was entitled to retrieve the possession of 10 marlas of land in question from the respondents. R.S.A No. 1469 of 1985 -3- The first appellate Court framed two additional issues and sought the report of the learned trial Court upon them. The additional issues framed are to the following affect. “Addl. Issue No. 1.Whether the suit is barred under Order 9 Rule 9 C.P.C ?OPD Addl. Issue No. 2 Whether the defendants have become owners of the suit land under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 ?OPD.” The learned trial Court went into these additional issues and returned findings in favour of the appellant. However, the First Appellate Court while considering the matter, dismissed the suit of the appellant by holding that the same is barred under the provision of Order 9 Rule 9 of the code of Civil Procedure. The said judgment of the first appellate court dated 11.03.1985 is in question in the present Regular Second Appeal. Learned counsel appearing for the appellant has contended that the impugned judgment is unsustainable in the eyes of law as the First Appellate Court has committed gross illegality by not answering all the issues that were alive and agitated before it. It is the contention of the learned counsel for the appellant that merely declining the prayer of the appellant on the ground that the suit is barred by Order 9 Rule 9 of the code without considering the facts in its entirety, has caused serious prejudice to the case of the appellant. Learned counsel for the respondents contended that the First Appellate Court decided the issue of law and, thereafter, the necessity of going into other issues was merely a futile exercise as the suit was held to be barred by Order 9 Rule 9 of the code of Civil Procedure. I have heard counsel for the parties and perused the impugned judgment. In the considered opinion of this Court, the first appellate court R.S.A No. 1469 of 1985 -4- has committed gross illegality by not adverting and returning the findings on all the issues laid before it. It is the mandate of the law that a Court is required to adjudicate upon all the issues which have been pressed before it by the litigating parties by proper application of mind, in order to ensure proper justice and also ensure that no prejudice is caused to the case of either of the parties. For the aforesaid reasons and also for the reasons that a substantial questions of law arises for consideration i.e “Whether the appellate Court is bound to give decision on all the issues that were raised before it or whether the appeal can be disposed of by answering only one issue and without adverting to any of the other issues”. The appeal is accepted. It is necessary to say that it is incumbent upon the Appellate Court to decide all the issues that have been raised before it and not confine itself to one issue to the exclusion of the others to answer the controversy. For the above said reasons, the appeal is allowed and the matter is remitted back to the First Appellate Court for decision afresh on merits by answering all the issues that have been raised before it. The appellate court on receipt of the copy of order shall issue notices to both the parties before embarking upon its exercise to decide the appeal in question. November 18, 2010 G.Arora (MAHESH GROVER) JUDGE