Pal Singh v. Dial Singh & Ors.

father of the plaintiffs & defendant No.2). He had mortgaged the same land orally with defendant No.1. The case of the respondents was that the property have not been redeemed and they are entitled to their share in the property. The case of the appellants on the other hand was that he had individually redeemed the property and even prior thereto an oral exchange took place between the parties where commensurate value of the share of the respondents was given by the appellant to the RSA No.502 of 2005 -2- respondents whereby the respondent relinquished any claim in the property in dispute. Both the parties led their evidence. In respect of oral exchange, the appellant led oral evidence as well as placed reliance on photocopy of two agreements Mark 'A' & Mark 'B'. Both the courts below discarded the oral testimony and, since the photocopy of the agreements were not admissible in evidence, discarded them also. Ultimately holding that no oral exchange was established the suit of the respondent was decreed as mentioned above. Following questions have been proposed: i) Whether the mortgage comes to an end when whole mortgagee is redeemed by one co-mortgagor? ii) Whether by the act of the parties oral family settlement and exchange dated 01.06.1980 was proved? iii) Whether the plaintiffs were required to get the possession of their shares within 12 years from the date of redemption by the appellant? As regards question No.(iii) while issuing notice of motion itself this contention was repulsed in view of Article 61 of the Schedule of the Limitation Act, 1963. As regards question No.(i), no law has been cited that if a mortgage is redeemed by one co-sharer, it will inure only to his benefit. Question No.(ii) is a pure question of fact. Learned counsel for the appellant has not been able to persuade me that the findings recorded thereon are either based on no evidence or on such mis-reading of evidence so as to render them perverse. In addition to these RSA No.502 of 2005 -3- questions, learned counsel for the appellant has argued that in view of absence of any issue framed on the oral exchange, the judgments of the courts below would cause prejudice to the appellant and thus, the judgments of the courts below are liable to be reversed. He has relied upon the decision of the Hon'ble Supreme Court in the case of Fiza Developers & Inter-Trade P. Ltd. vs. AMCI(I) Pvt. Ltd. & another, reported as 2009 (4) RCR (Civil) page 288 in support of this contention. In this case, the dispute related to an application under Section 34 of the Arbitration and Conciliation Act, 1996, whereby the appellants were aggrieved of the fact that their application under Section 34 had been considered and decided without framing any issue. Para 7 of the said judgment is as follows: “The object of issues is to focus upon the questions on which evidence has to be led and to indicate the party on whom the burden of proof lies. Rules 1 of Order 14 of the Code dealing with framing of issues is extracted below:.... In Makhan Lal Bangal v. Manas Bhunia [2001 (2) SCC 652], this Court held that the issues are important as they determine the scope of a trial by laying down the path for the trial to proceed, free from diversions and departures. This Court observed: "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 RSA No.502 of 2005 -4- 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." There is no doubt that framing of issues is necessary in every contested regular civil suit. Equally clear is the position that in proceedings which are intended to be summary in nature, issues are not framed. Proceedings for setting aside ex parte decrees, proceedings for restitution, proceedings for execution and proceedings for permission to sue as an indigent person, are illustrative of summary proceedings which are governed by the Code, where issues are not framed. In a summary proceeding, the respondent is given an opportunity to file his objections or written statement. Thereafter, the court will permit the parties to file affidavits in proof of their respective stands, and if necessary permit cross examination by the other side, before hearing arguments. Framing of issues in such proceedings is not necessary. We hasten to add that when it is said issues are not necessary, it does not mean that evidence is not necessary.” Learned counsel for the respondent has argued that this point was neither pressed before the ld. Lower Appellate Court nor raised in grounds of appeal and therefore the appellant cannot be heard regarding the same. Learned counsel for the respondent has further argued that in the present case, there were definite pleadings in regard to the oral exchange. Apart from that, the appellant led whatever evidence he has on the said exchange. Thus, no prejudice could have been caused to the RSA No.502 of 2005 -5- appellant by not framing this issue. Learned counsel for the respondent has relied upon the decision of the Hon'ble Supreme Court in the case of Swamy Atmananda & others vs. Sri Ramakrishna Tapovanam & others, reported as 2005(10) Supreme Court Cases 0051, wherein Hon'ble Supreme Court has held as follows: “If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case without establishing prejudice, it would not be open to a party to raise the question of non- framing of particular issue. In Nedunuri Kameswaramma vs. Sampati Subba Rao [AIR 1963 SC 884], it was observed : "No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis- trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer." In my opinion, the judgment cited by the learned counsel for the respondent is fully applicable to the fact of this case. It would be noticed that in the extracted paragraph of Fiza Developers(supra), the Hon'ble Supreme Court has relied upon RSA No.502 of 2005 -6- the earlier decision in Makhan Lal Bangal v. Manas Bhunia [2001 (2) SCC 652] whereby it has been mentioned as follows: "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.” Thus, evidence has to led not only on the controversies covered by the issues, but also pleadings. In these circumstances, the additional question raised in the arguments has also to be held against the appellant. Consequently, holding the proposed questions against the appellant, this appeal is dismissed. February 05, 2010 (AJAY TEWARI) JUDGE