Himachal Pradesh High Court
Ajeet Kumar vs Surjeet Singh on 16 June, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 16TH DAY OF JUNE 2022 BEFORE HON'BLE MR. JUSTICE SANDEEP SHARMA .
CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 249 OF 2021 Between:-
SOMI LAL (NOW DECEASED) THROUGH HIS LEGAL REPRESENTATIVE AJEET KUMAR SON OF LATE SHRI SOMI LAL R/O KACHIARI MAUZA KACHIARI, TEHSIL & DISTRICT KANGRA, H.P. PETITIONER (BY MR. ROHIT SHYAM, ADVOCATE) AND r
1. SURJEET SINGH SON OF SHRI GOPI CHAND;
2. KARAM CHAND S/O SHIR GOPI CHAND;
BOTH R/O VPO NALSUHA, TEHSIL DEHRA, DISTRICT KANGRA, H.P.
3. POONAM DEVI WIDOW OF SUBHASH CHAND, R/O VPO KACHIARI, TEHSIL AND DISTRICT KANGRA, H.P. RESPONDENTS (MR. RAJESH MANDHOTRA, ADVOCATE FOR R-1 AND R-2) (MR. NAVEEN K. BHARDWAJ, ADVOCATE FOR R-3) Whether approved for reporting:
This petition coming on for orders this day, the court passed the following:
OR D ER ::: Downloaded on - 17/06/2022 20:02:49 :::CIS 2 Feeling aggrieved and dissatisfied by the order dated 17.4.2021 passed by learned District Judge, Kangra at Dharamshala, whereby an application filed under Order XIV rule 5 CPC, praying therein to frame .
additional issues, came to be rejected, petitioner/defendant (hereinafter, 'defendant') has approached this court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set aside order dated 17.4.2021 and thereafter to allow the application for framing of additional issues.
2. Precisely, the facts of the case, as emerge from the record, are that the respondents Nos. 1 and 2/plaintiffs (hereinafter, 'plaintiffs') filed suit for declaration with permanent prohibitory injunction and in the alternative for possession against the petitioner/defendant No.1 and respondent No.3/defendant No.2 (hereinafter, 'defendants') in the court of learned Civil Judge (Senior Division), Kangra District Kangra, averring therein that plaintiffs personally and through predecessor-in-interest are owners-in-possession and cultivation of the suit land as detailed in the plaint. Plaintiffs further averred that the defendant No.1 was never inducted as a tenant over the suit land but he being a clever and shrewd person got mutation No. 505 under S. 104 of the Himachal Pradesh Tenancy and Land Reforms Act entered in his favour in the absence of the plaintiffs.
Plaintiffs claimed that the entry of tenancy could never be made of the land in Khasra No. 880 as the same was in self cultivating possession and ownership of the plaintiffs. Plaintiffs also claimed that on the basis of entry of ownership of Khasra No. 880, defendant No.1 transferred part of Khasra No. 880/1 measuring 0-03-90 hectares and mutation No. 612 was ::: Downloaded on - 17/06/2022 20:02:49 :::CIS 3 sanctioned on 20.9.2001 in favour of defendant No.2. Plaintiffs further claimed said entry of ownership in the name of defendants qua Khasra No. 880 and part thereof is wrong, illegal, void and paper entry and is liable to .
be rectified.
3. Defendants, in their written statement, refuted the claim of the plaintiffs and stated that the land in Khasra Nos. 860, 861, 868, 869, 870 and 871 is not under cultivation nor the land was ever cultivated by the plaintiff. Defendant No. 1 further averred that the land described in prayer 'A" of the plaint as Khasra No. 863, 867, 873, 914 and 880 is under self cultivation as owner of the defendant No.1 except field No. 1436/880 measuring 0-03-90 hectares. Defendant claimed that land in Khasra No. 1436/880 is in the possession of the defendant No.2. Defendants claimed that the correction was made by Assistant Collector 2nd Grade (nt.) Kangra vide order dated 15.7.1985 in case No. 12/83 regarding tenancy in the name of defendant No.1 in respect of land shown as Khasra No. 880.
4. On the basis of aforesaid pleadings adduced on record by parties to lis, learned trial Court framed following issues:
"1. Whether the plaintiffs are exclusive owner-in-possession of the suit land as claimed in the plaint? OPP
2. Whether the revenue entries showing the defendants as tenants and subsequently owners of the suit land are without any basis as claimed? OPP
3. Whether the mutation No. 505 attested by A.C. Second Grde/ without any jurisdiction, if so, its effect? OPP
4. Whether the defendants are causing interference in the peaceful possession of plaintiffs? OPP
5. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as claimed for by them? OPP ::: Downloaded on - 17/06/2022 20:02:49 :::CIS 4
6. Whether in the alternative, plaintiffs re entitled to decree for possession? OPP
7. Whether the suit is time barred? OPD 1 & 2
8. Whether the plaintiffs are estopped by their own act and conduct? OPD 1 & 2 .
9. Whether the suit is bad for non-joinder of necessary parties?
OPD
10. Whether this court has no jurisdiction to entertain the present suit? OPD
11. Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD
12. Whether the defendant No. 1 (read 2 as amended) is in possession of Khasra No. 880/1 on account of Sale Deed dated 06.09.2002? OPD
13. Whether the defendant No.2 has constructed house over the suit land in the year 2003, if so, its effect on limitation? OPD
14. Whether the plaintiffs have not come to the court with clean hands? OPD
15. Whether the suit is not maintainable? OPD 1 & 2
16. Whether the suit has not been filed by competent person? OPD
17. Relief"
5. Subsequently, on the basis of pleadings and evidence led on record by the parties, suit having been filed by the plaintiffs came to be partly decreed to the effect that land in Khasra No. 203, Khatauni No. 407, Khasra Nos. 860, 861, 868, 869, 870, 880 (except the possession of Khasra No. 880/1)(now 1436/880), 871 Kita 7 area measuring 0-41-29 hectares situate in Mohal and Mauza Lalehar, Tehsil and District Kangra as per Jamabandi for the years 1978-79 is/was exclusively owned, possessed and cultivated by the plaintiffs earlier and they are entitled to remain as such, in future also.
::: Downloaded on - 17/06/2022 20:02:49 :::CIS 56. Being aggrieved and dissatisfied by judgment and decree passed by learned trial Court, defendant No.1 filed an appeal before learned District Judge, Kangra at Dharamshala, which is still pending .
adjudication. During the pendency of the appeal, defendant No.1 filed an application under Order XIV, rule 5 CPC praying therein for framing of following issues a. Whether the defendant No.1 is tenant at will in the suit land and has become owner-in-possession in the suit land as alleged? OPD No.1 b. Whether the defendant No.2 bona fide purchaser for value, if so, its effect as alleged? OPD"
7. Learned first appellate court, rejected the aforesaid application vide order dated 17.4.2021. In the aforesaid background, defendant No.1 has approached this court in the instant proceedings.
8. Mr. Rohit Shyam, learned counsel for the defendant No.1 vehemently argued that in view of specific stand taken by defendant No.1 in his written statement that he was inducted as tenant by the plaintiff, the issue, "Whether the defendant No.1 is tenant at will in the suit land and has become owner-in-possession in the suit land as alleged? ought to have been framed by the court. He also argued that since it has come in the plaint itself that defendant No.1 sold the suit land to defendant No.2, issue "Whether the defendant No.2 bona fide purchaser for value, if so, its effect as alleged" is relevant and should have been framed. He argued that though aforesaid issues were not framed by learned trial Court before passing judgment and decree dated 19.9.2016 but for deciding the ::: Downloaded on - 17/06/2022 20:02:49 :::CIS 6 controversy for all times to come, learned first appellate court ought to have framed issues as were proposed vide application filed under Order XIV, rule 5 CPC.
.
9. Mr. Rajesh Mandhotra, learned counsel for the plaintiffs, while making this court peruse copy of judgment and decree dated 19.9.2016 passed by learned trial Court, contended that the issues sought to be framed by way of application under Order XIV rule 5 stood framed by learned trial Court before passing the judgment and decree, which ultimately came to be laid challenge in the appeal before learned District Judge, Kangra at Dharamshala. Mr. Mandhotra further argued that issue Nos. 2 and 12, framed by learned trial Court, if read clearly, suggest that specific issues with regard to defendant's claim that he is tenant at will and defendant No.2 is the bona fide purchaser of the suit land, already stand framed and adjudicated by the learned trial Court and as such, there was no occasion, if any, for the learned first appellate court to accede to aforesaid request made on behalf of defendant No.1.
10. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in order dated 17.4.2021 by learned first appellate court, this court finds force in the aforesaid submission of Mr. Rajesh Mandhotra, Advocate.
11. Bare perusal of issues Nos. 2 and 12, framed by learned trial Court clearly reveals that learned trial Court having taken note of the stand taken by defendant No.1, framed issue that, :whether the revenue entries showing the defendants as tenants and subsequently owners of the suit land are without any basis as claimed".
::: Downloaded on - 17/06/2022 20:02:49 :::CIS 712. Now by way of application under Order 14 rule 5 CPC, defendant No.1 proposed the issues as reproduced herein above but if issues Nos. 1 2 and 12 framed by learned trial Court are read juxtaposing two issues .
proposed to be framed in the appeal, this court finds that the words used, while framing issues, may be different but ultimate crux is the same.
Similarly issue No. 12 framed by learned trial Court specifically deals with the possession of defendant No.2 over Khasra No. 880/1 on account of sale deed dated 6.9.2001 executed in his favour by defendant No.1.
13. Once the factum with regard to sale made by defendant No.1 in favour of defendant No.2 stands duly admitted in the plaint and learned trial Court has framed a specific issue with regard to possession of defendant No.2 being bona fide purchaser of suit land i.e. Khasra No. 880/1, there was no requirement, if any, for the learned first appellate court to fame issue 'b' as detailed in the application.
14. No doubt, it is the duty of learned trial Court to frame issues on the basis of pleadings of the parties, which in the case at hand, appear to have been performed well by it, because, all the issues framed by learned trial Court before passing judgment and decree dated 19.9.2016 are based upon the pleadings adduced on record by parties to lis. Otherwise also, it is not understood, when issues were framed by learned trial Court in the presence of learned counsel for the parties, why at that stage, plea was not raised that the issues now sought to be framed by way of application under Order XIV, rule 5 CPC, filed before learned first appellate, also arise for consideration.
::: Downloaded on - 17/06/2022 20:02:49 :::CIS 815. Interestingly, in the case at hand, defendant No.1 remained satisfied with the framing of issues, which ultimately came to be decided vide judgment and decree dated 19.9.2016 and thereafter, at the time of .
filing of appeal against said judgment and decree, filed application praying therein for framing of issues, which otherwise in one way or other, already stand decided by learned trial Court vide judgment and decree dated 19.9.2016.
16. Once, learned counsel for the defendant No. 1 has not claimed any other issue at the time of framing the same by learned trial Court, no fault can be said to have been committed by learned first appellate court by not framing issues now sought to be framed during the pendency of the appeal.
17. Consequently, in view of the detailed discussion made supra, I find no illegality or infirmity in the order dated 17.4.2021 passed by learned Civil Judge (Senior Division), Kangra, which appears to have been passed on the basis of proper appreciation of the facts and law, as such, the same is upheld, as a result, the petition is dismissed. Pending applications, if any, stand disposed of. Interim directions, if any, also stand vacated.
(Sandeep Sharma), Judge June 16, 2022 (vikrant) ::: Downloaded on - 17/06/2022 20:02:49 :::CIS