Orissa High Court
Duryodhan Mohapatra vs Bharat Mohapatra And Ors. on 7 November, 1988
Equivalent citations: AIR1989ORI142, AIR 1989 ORISSA 142, (1989) 2 ORISSA LR 169 (1989) 1 CURCC 609, (1989) 1 CURCC 609
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. Duryodhan Mohapatra, defendant No. 1 in the trial Court and respondent No, 1 in the lower appellate Court, has filed this appeal under Order 43, Rule 1(4), of Civil IP.C. (for short' C.P.C.'), challenging the order of the lower appellate Court remanding the case to the trial Court with the direction to frame two specific issues, give opportunity to both the sides to adduce additional evidence, if any, on the said issues and to decide the suit afresh after hearing the parties.
2. The respondents filed the suit for partition of the suit properties and for separate allotment of Ac. 0.02 decimals of land out of the 2/3rd interest of the plaintiffs to defendants 2, 3 and 4. The suit property was the homestead land of one Kusuna Mohapatra. The case of the plaintiffs, shortly put, was that one Kusuna Mohapatra had three sons viz. Naran, Gangadhar and Gananatha. The three brothers were separated and were possessing their respective interests in the suit property before the current settlement and therefore separate note of possession of each branch had been noted in the record of rights. Of the three sons of Kusuna, Naran died first leaving his son defendant No. 1. Thereafter Gangadhar died unmarried. The plaintiffs are the sons of Gananath and the defendant No. 1 is the son of Naran. On the death of Gangadhar, his property devolved upon Gananath, the surviving brother. Out of the said suit property, an area of Ac. 0.02 decimals was sold to defendant No. 2 by Gananath by a registered sale deed dt. 7-4-1936, The suit property having not been partitioned by metes and bounds, the plaintiffs and defendant No. I were in possession of the same jointly. The request for amicable partition by the plaintiffs having been turned down by defendant No. 1. The plaintiffs filed the suit for the aforementioned reliefs.
2A. In the written statement, defendant No. 1 denied the plea of the plaintiffs andstated that Kusuna Mohapatra had two wives,namely, Saita and Jasornanti, Naran and Gangadhar were sons of Kusuna through his first wife, Saita and Gananath was his sonthrough his second wife Jasomanti. After thedeath of Kusuna, Naran, Gangadhar andGananath had together lived for some time, but subsequently they were separated. By the time of current settlement, the three brothers had separated. In the partition, the suit property had been allotted to Gangadharand in the current settlement records, separate note of possession had been made accordingly. After the current settlement Gangadhar and Naran again reunited, lived together andGangadhar died while living jointly with Naran. Naran thereafter succeeded to the suit property left by Gangadhar and possessed the same.
The suit plots 1008 and 1009 with housesstanding thereon were claimed to be inexclusive possession of defendant No. 1. Onthese pleadings the defendants denied theclaim for partition, and allotment of shares ofdefendant No. 1.
3. The trial Court framed six issues, but no specific issues were framed on the questions whether Kusuna Mohapatra had two wives; whether Naran, the father of defendant No. 1 and Gangadhar were born through his first wife and Gananath was born through his second wife; whether Naran and Gangadhar were reunited after current settlement and Gangadhar predeceased Naran during their jointness. However, the trial Court considered these questions on the evidence available on record and came to hold that the case of defendant No. 1 as stated earlier is acceptable.
4. On appeal by the plaintiffs, as it appears from the judgment of the lower appellate court, it was urged on their behalf that the findings of the lower Court that Kusuna had two wives; that Naran and Gangadhar were born to his first wife, Saita, and Gananath was born to his second wife, Jasomanti, and that Naran and Gangadhar reunited after their partition were vitiated due to absence of specific issues. It was further urged on their behalf that the trial Court erroneously held that there was partition between the parties, though the suit lands were jointly possessed by both the parties, without proper appreciation of the evidence on record As the discussions in the judgment of the lower appellate Court indicates the court considered the findings arrived at by the trial Court on the aforementioned questions on their merits and came to hold that the trial Court had not approached the case in its proper perspective and had not kept in mind the correct legal position. The court also held that in the absence of specific issues on the two questions which are material and vital for proper adjudication of the controversy in the case, attention of the parties was not drawn to the questions and proper and sufficient evidence was not led on these questions. On these findings the appellate Court felt that it would be just and proper to remand the case to the trial Court for fresh consideration with the direction to frame the two specific issues noticed earlier; to give opportunity to both the parties to lead evidence regarding these issues; to consider the existing evidence and fresh evidence, if any, led by the parties and dispose of the suit in accordance with law.
5. The learned counsel for the appellant contended that since the parties had led evidence on the questions namely, whether Kusuna Mohapatr had two wives; whether Naran and Gangadhar were born to his first wife and Gananath to his second wife; whether Naran and Gangadhar were reunited after the three brothers were separated; whether. Gangadhar died in a state of jointness with Naran and the said evidence was considered by the trial Court and the findings arrived at, the lower appellate court erred in reversing the findings on the ground of absence of specific issues. He cited several decisions in support of his contention, laying particular stress on the decision of the Supreme Court in the case of Nedunuri Kameswaramma v. Sampati Subba Rao, reported in AIR 1963 SC 884 in support of his contention. I have carefully perused the said decision. In that case the learned single Judge of the High Court held that the suit deserved to be dismissed on the short ground that the decision of the two courts below proceeded on a matter not pleaded or raised as an issue. On consideration the Supreme Court took the view that the suit could not be dismissed on this narrow ground and also that there was no need for a remit, as the evidence which had been led in the case was sufficient to reach the right conclusion. The court further observed that neither party claimed before it that it had any further evidence to offer. It appears from the discussions in the judgment that the case had been reopened twice to give the respondent a chance to lead more evidence. Even then, no attempt was made to get the issue modified or the proper pleadings to be made. Further, the lower Court had held that in the facts and circumstances of the case neither party was prejudiced in the absence of specific plea or issue regarding the point in question. On consideration of all the fact sand circumstances of the case, the Supreme Court observed that where 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. The suit could not be dismissed on this narrow ground, and also there is no need for a remit as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.
5A. A similar view was taken in the case of Kunju Kesavan v. M.M. Philip, reported in AIR 1964 SC 164, where the Court on consideration of the facts of that case held that the parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhave Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision decision.
5B. The decisions reported in AIR 1959 Cal 181 (Krishna Das Nandy v. Bidhan Chandra Roy), AIR 1974 Cal 283 (Shri Radha Gobinda Jew v. Smt. Kewala Devi Jaiswal), AIR 1976 Rajasthan 10 (Girdhar Singh v. Gokul) and AIR 1977 Cal 99 (Saraswati Debi v. Satya Narayan Gupta) are on similar lines and therefore it is needless to discuss in detail the facts in these cases.
6. In my view, the question whether the absence of any specific issue will vitiate the trial or not depends on the facts and circumstances of the case in question. If as observed by the Supreme Court, it can be ascertained from the materials on record that both the parties understood the rival case and the relevant questions arising for consideration and led all the evidence on all material aspects of the case and the court on considering the said material gave its findings, then the decision cannot be said to have been vitiated merely on the ground of absence of specific issue in question, the reason being that no party can be said to have been prejudiced by absence of issue.
7. In the present case, as noticed earlier, the lower appellate Court on consideration of the materials has held that the trial Court did not understand properly the points arising for consideration, particularly the question of reunion between Gangadhar and Naran and the evidence on record was scanty and insufficient to give a proper findings. In view of these findings of the lower appellate court it cannot be said that the lower appellate court committed serious illegality or irregularity in deciding to remit the case to the trial Court for fresh disposal after framing, the specific issues on the questions so that the attention of the parties is pointedly drawn to those questions and all evidence relating to the said matter may be brought on record.
8. For the foregoing reasons I find no merit in the appeal which is accordingly dismissed. Parties are to bear their respective costs of this appeal.