Bombay High Court
Shri Umakant B. Kenkre And Anr. vs Communidade Of Priol Through The ... on 17 November, 1994
Equivalent citations: 1996(5)BOMCR209
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. The plaintiffs in a suit for declaration of the ownership of the suit property filed this revision petition. In the said suit the allegation is that the defendant No. 2 is interfering with the properties. Defendant No. 2 pleaded that he is tenant of the property. Issues have been framed on the basis of the pleadings of the respective parties. Issue No. 4 was framed on the basis of the pleadings by the defendant as follows:---
"Whether the defendant No. 2 proves that the property 'Bhatiem' surveyed under No. 55/6 and 55/7 belongs to Communidade of Priol and he is in possession of the same as lawful tenant?"
Whereas the issues based on the pleadings of the plaintiffs has been framed as issue no. 2 as follows:-
"Whether the plaintiffs prove that apart from Dr. Purshottam Kuvelkar and Shri Bhalchandra Kenkre and their heirs, no other person or body had any right or title in respect of the suit property which is surveyed under No. 55/7?"
Admittedly these two issues have been framed on the basis of the rival claims put forward by the parties. The plaintiff filed the petition which gives rise to this Civil Revision Application to delete issue No. 4 which was framed on the basis of the pleadings. The Court below has rightly dismissed that application.
2. The learned Counsel for the petitioners contended that in the light of the pleadings of the plaintiffs the Issue No. 4 should not have been framed by the Court. The further contention of the counsel for the petitioners is that defendant No. 2 could have independently made his claim. I am at a loss to understand how the contentions of the counsel are sustainable. The framing of issues is controlled by Order XIV of C.P.C. Order XIV, Rule 1(1) says that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other; (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence; (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
3. In view of these provisions of C.P.C. I do not find any error in the orders of the Court by rejecting the application of the petitioner. The Court has rightly gone through all the allegations and counter allegations made in the plaint and in the written statement and thereafter that issues have been framed. The counsel for the petitioner has no case that the issues have been framed not on the basis of the pleadings.
4. The Counsel further contended that the Court ought to have looked into the prima facie case of the respective parties before framing of issues. I am afraid how this contention is sustainable in the face of the aforesaid provisions of C.P.C. Counsel also brought my attention to the decision reported in Ramu Shivappa Agalgava and others v. Imam Kashim Pathan and others, which arises under the Bombay Tenancy and Agricultural Lands Act, 1948. The facts arising in that case is the owner of the land entered into an agreement to sell with the defendant. When the owner is suspected to negotiate with the third party in respect of the same property the prospective purchaser filed the suit for specific performance of the contract. The suit was decreed for specific performance of the contract and the decree was sought to be executed. Then at that stage the owner of the land, namely, the defendant in the suit filed a fresh suit claiming that he is a tenant and he insisted that on the basis of that pleading the matter has to be referred to the authority under the Bombay Tenancy and Agricultural Lands Act, and the Court refused to frame that issue on the ground that it is frivolous. That is a case where the Court refused to frame the issue where that issue has not arisen at all because a person who agitated in the Court of law cannot go in another pretext to defeat the fruits of the decree and file a suit. Therefore the facts of the case and the question of law involved in that case will not be useful to the petitioner in this case.
5. In view of the discussions as aforesaid I find no reason to interfere with the orders of the Court below.
6. The revision application is dismissed in limine.
7. There shall be no order as to costs.