Bombay High Court
Sk. Ibrahim S/O Sk. Mohamood And Ors. vs Sk. Mehmood S/O Sk. Vazir on 28 February, 2003
Equivalent citations: AIR2003BOM357, 2004(1)BOMCR343
Author: J.N. Patel
Bench: J.N. Patel
JUDGMENT J.N. Patel, J.
1. Heard the learned counsel for the parties.
2. The appellants are the original defendants who have impugned the judgment and decree dated 14-7-1994 passed by the District Judge, Akola in Regular Appeal No. 168 of 1991 between Sk. Ibrahim and Ors. v. Sk. Mohammad, remanding the matter to the trial Court for fresh trial, arising out of the judgment and decree dated 29-4-1991 passed by the 2nd Joint Civil Judge, Senior Division, Akola, between the parties.
3. The respondent i.e. the original plaintiff was required to file suit for declaration and mandatory injunction as he was obstructed by the defendants by erecting thorny partition on 4-7-1988 because of which the plaintiff was not able to have access to his land and cultivate the same and, therefore, the plaintiff sought a declaration by way of customary right to use the said way to approach field S. No. 49/2-B, admeasuring 22 gunthas and survey No. 50 admeasuring 3 acres 23 gunthas of village Barshitakali.
4. The defendants, by their written statement, denied the claim of the plaintiff and contended that the plaintiff used to approach his field from Government road situated on the eastern side of field S. No. 50 and that the said fact has been admitted by them. It was also contended that there were revenue proceedings before the Tahsildar in the matter, which terminated in favour of the defendants as the Tahsildar, on inspection, found that there was no access as alleged and that the plaintiff, by filing the suit, is unnecessarily harassing the defendants.
5. The trial Court, on examining the pleadings on record, framed following issues:
"1. Do the plaintiff prove that the deft. has purchased part of land Sr. No. 49/1 from the plff. and has not sold some portion and therefore he is in possession of 22 gunthas of land of said Sr. No. as alleged?
2. Do the plff. further prove that the defts. obstructed and put thorny fencing which is shown in the map as A B C as alleged in the plaint?
3. Whether the plff. is entitled for mandatory injunction against the deft. asking them to remove the thorny obstructions shown in the map?
4. What order ?"
The trial Court arrived at the findings that the plaintiff has proved that the defendants have purchased part of land Survey No. 49/1 from the plaintiff by retaining 22 gunthas out of it with the plaintiff and that the defendants have obstructed by putting thorny fencing which is shown in map as A B C, and is entitled for mandatory injunction against the defendants to remove the thorny fencing shown in the map. It further found that the plaintiff is entitled for the Injunction as prayed for and that the access sought for by the plaintiff to his field arises out of the easement/quasi easement of necessity. This decision came to be challenged by the defendants in the appeal before the learned District Judge. The learned lower appellate Court, on examining the evidence, felt that there is considerable force in the contention of the learned counsel appearing for the appellants-original defendants that the learned trial Court has not framed issues regarding acquisition of prescriptive right to the use of the suit way and, therefore, matter has not been properly thrashed out by the learned trial Judge. The learned lower appellate Court was impressed by this argument and observed that significantly enough, the learned trial Judge has not framed any issue regarding acquisition of prescriptive right and this may be due to loose pleadings in the trial Court. In respect of pleadings, it observed that the perusal of the plaint gives an Indication that the respondent has claimed the suit way as an easement by prescription as he is claiming the suit way by virtue of using the same for more than thirty years and, therefore, acquired right of way and, therefore, he has acquired prescriptive right of way and, therefore, it is the case of the plaintiff that he has easementary right by way of prescription and, therefore, in the light of the above observations, the learned first appellate Court not only remanded the matter for fresh trial but also directed the trial Court to frame issues specimen of which came to be recorded in the judgment itself, permitting the parties to amend the pleadings, as the learned first appellate Court felt that the controversy has not been properly thrashed out and, therefore, there is no other way but to remand the matter to the trial Court.
6. Mr. Mohta, the learned counsel for the appellants, submitted that the appellate Court, while deciding the appeal, has no right to remand the matter on the ground that the parties have not pleaded their case properly or for insufficiency of evidence and non-framing of issues. According to Mr. Mohta, this would amount to allowing the plaintiff to fill up the lacunae in his case.
7. Mr. Mohta further submitted that without examining merits of the matter, the lower appellate Court ought not to have set aside the judgment and decree of the trial Judge and remanded the matter to the trial Court for fresh trial because the parties to the suit have contested the matter fully aware of their respective rights and, therefore, impugned order deserves to be quashed and set aside.
8. Mr. Kaptan, the learned counsel appearing for the respondent, submitted that the question involved in the case relates to easementary rights which are claimed by the plaintiff. It is submitted that the plaintiff having failed to plead properly as regards the nature of right which he has in order to go through dhufa of the defendants' field i.e. whether it is prescriptive or out of necessity, but on the other hand, what has been sought is a declaration that the plaintiff has customary right to use the right of way.
9. Mr. Kaptan submitted that it is in this set of confusion which arose out of erroneous pleadings that the trial Court framed the issues for its consideration and though the customary right has been pleaded, it has rightly come to the conclusion that the plaintiff has right to use the way claimed by him in the suit. Mr. Kaptan submitted that the appellate Court having realised that the par ties should not suffer miscarriage of justice for want of proper pleadings and that they deserve a fresh opportunity to get their suit decided on merits, was justified in remanding the suit for fresh trial by permitting the parties to amend the pleadings and also directing the trial Court to frame proper issues of which specimen are also given in the impugned judgment and, therefore, no interference is called for.
10. It is well settled law that when the parties fully aware of their respective cases, lead all the necessary evidence not only in support of their case, but in refutation of the claim of the other side, non-framing of the issues cannot be held to be a ground for remanding the case unless it is fatal to the case or resulted in mistrial which vitiates the proceedings. Because if the evidence which has been led before the trial Court is sufficient to reach a right conclusion and neither party has raised any objection to the framing of the issues before the trial Court, there was no reason why the first appellate Court should have remanded the matter for fresh trial by giving suo motu directions in the parties to amend the pleadings which parties themselves have not sought. This is not permissible as a public policy for the reason that it is for the parties to put up their case in a proper manner and once they undergo the rigour of the trial, the findings should not be interfered with by remanding the case.
11. In the present case, the parties have been litigating since the year 1989, the question as to whether the plaintiff is entitled to right of way by virtue of prescriptive right or customary right, is a matter to be decided on merits as whatever evidence the parties have in the matter, has been led, but it is not the grievance of either plaintiff or the defendants that they were not given fair opportunity to lead the evidence or conduct the trial. The learned appellate Court has also not examined the case on merits which could have enabled it to assess the judgment and decree of the trial Court and, therefore, reverting the parties back to stage one could only result in prolonging the litigation and unnecessary waste of judicial time as well as causing inconvenience to the litigants.
12. On going through the evidence on record, this Court is of the opinion that the reasonings of the first appellate Court that the case was not properly thrashed out and that it required to be approached from a particular angle by pleading the case in a particular way which could have given rise to a particular issue, is erroneous and, therefore, the impugned order of remand by the appellate Court by granting liberty to the parties to amend their pleadings and directing the trial Court to recast the issue in terms of the specimen issues proposed in the judgment, is quashed and set aside. The first appellate Court is directed to decide the case on merits with whatever material and evidence is on record. The parties are directed to appear before the first appellate Court on 1st April, 2003, The first appellate Court is directed to expeditiously dispose of the appeal as the decision of the same is already delayed.
C.C. expedited.