Karnataka High Court
K Ballarigowda vs Sarojamma on 5 April, 2017
Equivalent citations: 2017 AIR CC 3062 (KAR), 2017 (4) AKR 273, (2017) 4 KCCR 3122, (2017) 3 ICC 459, (2018) 2 CIVILCOURTC 284
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.S.A NO. 102/2013 (DEC & INJ)
BETWEEN
K. BALLARIGOWDA,
S/O BALLARIGOWDA,
AGED ABOUT 46 YEARS,
R/AT TADAGAVADI VILLAGE,
ARAKERE HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT. ... APPELLANT
(BY SRI. K. N. MOHAN, ADVOCATE )
AND
SAROJAMMA, W/O NANJUNDARADHYA,
AGED ABOUT 58 YEARS,
R/O TADAGAVADI VILLAGE,
ARAKERE HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT. ... RESPONDENT
(BY SRI. V. SRINIVAS, ADVOCATE FOR C/R.)
THIS RSA IS FILED U/S 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.10.2012
PASSED IN R.A.NO.59/2010 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (SR.DN.) AND JMFC,
SRIRANGAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.8.2010 PASSED IN O.S.NO.75/2006 ON THE FILE OF
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PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC,
SRIRANGAPATNA.
THIS RSA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and also the respondent.
2. On 09.12.2013, this court has framed the following substantial question of law for consideration:-
"Whether the judgment and decree of the Courts below sustains in view of the suit for the relief of declaration without seeking the relief of possession?"
3. After hearing the learned counsel, the Court is of the opinion that, the above substantial question of law is not happily framed because of the simple reason that, the plaintiff by way of an amendment to the plaint has sought for declaration as well as for recovery of possession.
4. The argument of the learned counsel sofar as the substantial question of law is concerned, that though there is an amendment to the plaint, amending the prayer for declaration and for recovery of 3 possession, but the corresponding pleadings in the body of the plaint have not been amended. Secondly, the learned counsel contended that, under Order XIV Rule 3 of CPC, the trial Court has not framed necessary issue, specifically with regard to possession, as to whether the plaintiff is entitled to recover the possession of the suit schedule property or not.
5. In view of the above submission made and also after thoroughly going through the pleadings of the parties and as well as the evidence placed before the Court, and on perusal of the judgment of the trial Court and the First Appellate Court, in my opinion, the substantial questions of law have to be framed in the following manner:-
i) Whether the trial Court and the First Appellate Court have committed any serious legal error in decreeing the suit without there being a corresponding pleading with reference to recovery of possession of the property by the plaintiff, though there is an amendment to the prayer i.e., for declaration and for recovery of possession?
ii) Whether the trial Court has committed any serious legal error in omitting to 4 frame a specific issue regarding entitlement of recovery of possession of the suit schedule property by the plaintiff ?
6. Before answering the above substantial questions of law, it is just and necessary for this court to have a brief factual aspects of this matter as contended by the parties before the trial Court in their pleadings and the evidence led by them in support of their pleadings and the issues framed by the trial Court and the findings recorded thereon, and also whether the First Appellate Court has re-appreciated the materials on record, in proper perspective.
7. As could be seen from the plaint averments, the plaintiff originally prayed for the relief of permanent injunction restraining the 1st defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. The suit schedule property is a vacant site in Junjar No.62 situated at Tadagawadi Village, Arkere Hobli, Srirangapatna Taluk, measuring 40 ft. x 40 ft. having boundaries,-
East : Chaitanyaradhya's Site;
West : Ballarigowda's House;
North : Road; and
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South : Javaregowda's land
8. It is the plaintiff's case that, the said property originally belonged to the Government. The Government has formed sites carved in Sy. Nos.78, 236 and 238 of Tadagawadi Village and granted site No.13 in favour of the plaintiff vide Grant Order dated 13.02.1976 and issued Possession Certificate. From the date of the grant, the plaintiff had been in possession and enjoyment of the said property. The plaintiff has been exercising the ownership by paying kandayam to the said property. The defendants, particularly the 1st defendant, though has absolutely no right, title and interest over the property, has started interfering with the plaintiff's peaceful possession and enjoyment of the suit property. Therefore, the plaintiff filed a suit. In the plaint itself it is further stated that the 1st defendant, on the ground that the Western portion of the said property was granted to his father, started encroaching upon the property of the plaintiff and in fact dug foundation in the said site and attempted to put-up construction of a house on the said property and 6 thereby interfered with the plaintiff's possession and enjoyment of the property. It is also the case of the plaintiff that, she fell ill and she went to Bengaluru, for the purpose of taking treatment. At that time, the 1st defendant made attempts to get the katha of the said property changed to his name and he also gave a representation to the 3rd defendant for the purpose of changing katha, etc. By pleading in the above said manner, the plaintiff has prayed for permanent injunction. Subsequently, the plaint has been amended seeking for declaration of title and also for Mandatory injunction preventing the 1st defendant to demolish or remove the construction made by him on the suit schedule property and for a direction to him for to deliver the vacant possession of the property in favour of the plaintiff.
9. The defendant No.1 appeared before the Court in pursuance of the summons and filed his written statement. The 1st defendant has denied the allegations that, the suit schedule property has been granted to the plaintiff. It is also stated that the plaintiff has not been 7 in possession and enjoyment of the said property at any point of time. Defendant No.1 has also taken-up a contention that as the plaintiff did not want to have the said property, she executed a Gift Deed giving the property in favour of the 2nd defendant. It is also contended by the 1st defendant that, he was granted Site No.16 by the said Tadagawadi Gram Panchayat and he has constructed a house in the said site and he has been residing in the said house. The plaintiff and the 2nd defendant have colluded with each other and thereafter, the 2nd defendant filed a suit in O.S. No.58/2006 against the 1st defendant on the basis of the said gift deed and obtained an Order of Temporary Injunction. But, thereafter, the said injunction was vacated on 03.04.2006 and it appears the said suit was later, abandoned by Defendant No.2. The 1st defendant has also stated that Defendant No.2 having failed in his suit, has provoked and instigated the plaintiff to file a suit against Defendant No.1. It is also specifically stated that, without asking for declaration and recovery of possession, the suit is not maintainable, and 8 therefore, the plaintiff is not entitled to any relief. He has also contended that the suit is not maintainable, as the Court Fee paid is not sufficient, etc.
10. On the basis of the above said rival contentions, the trial Court after amendment of the plaint, has framed the following issues:-
i) Whether plaintiff proves that she is the owner of suit property as stated in para No.2?
ii) Whether plaintiff proves that the 1st defendant has encroached over the suit schedule property and has put-up construction?
iii) Whether the defendant proves that the property granted to him is within the plaint schedule?
iv) Whether the suit is barred by pecuniary jurisdiction?
v) Whether the suit is not maintainable without seeking possession?
vi) Whether the plaintiff is entitled for a declaration and mandatory injunction?
vii) Whether the plaintiff is entitled for permanent injunction?
viii) For what order or decree?9
11. The plaintiff examined herself as PW.1 and two more witnesses on her side as PWs. 2 & 3 and got marked Exs. P1 to P9. The defendant examined himself as DW.1 and got marked Exs. D1 to D8.
12. The trial Court after appreciating the oral and documentary evidence on record, has answered Issue Nos. 1 & 2 in the affirmative and Issue No.3 in the negative and held that the plaintiff is entitled for the relief claimed and accordingly, decreed the suit of the plaintiff declaring that the plaintiff is the owner of the suit schedule property and also granted a Mandatory Injunction directing Defendant No.1 to demolish the construction made on the suit schedule property illegally by him, at his cost and to hand-over the vacant possession of the suit schedule property to the plaintiff, within 30 days from the date of its order. Being aggrieved by the said judgment and decree passed by the trial Court, the 1st defendant preferred an appeal before the learned Principal Civil Judge (Sr.Dn.) and JMFC at Srirangapatna in RA No.59/2010.
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13. The First Appellate Court after considering the pleadings of the parties and also bearing in mind the issues framed by the trial Court, and on the basis of the grounds urged before it, has framed the following points for consideration:-
i) Whether the issues framed by the court below are proper?
ii) Whether the trial Court had appreciated the material placed before it in proper perspective?
iii) Whether the Judgment and Decree passed by the trial Court is perverse, capricious and injudicious, and is liable to be set aside?
iv) Whether any interference is called for by this Court and if so? To what extent?
v) What order?
14. The First Appellate Court after hearing both the parties and giving its anxious considerations to the evidence and pleadings of the parties, answered Point Nos.1 & 2 in the affirmative and Point Nos. 3 & 4 in the negative, and ultimately, concurred with the judgment and decree passed by the trial Court and consequently dismissed the appeal of the 1st defendant.11
15. Being aggrieved by the above said two judgments, the appellant is before this court. As noted above, this court also found that there are two substantial questions of law, which have to be considered by this court.
16. On careful perusal of the judgment of the trial Court and the First Appellate Court, it is noticed that the Courts below have categorically discussed with regard to the evidence of PWs. 1 to 3 and DWs. 1 to 3 and also on appreciating the documentary evidence on record, have come to the conclusion that the suit schedule property bearing Site No.13 has been granted in favour of the plaintiff and further the 1st defendant has not claimed any right, title and interest over Site no.13 at all. On the other hand, it is the case of the 1st defendant that Site No.16 has been granted in his favour and he put-up construction in the said Site No.16 and he is residing there. But, the question that arose for consideration of the courts below was, whether the said construction was made in Site No.13 or in Site No.16. In fact, the court appointed a Commissioner in 12 order to ascertain as to whether in which site actually the construction has been made by the 1st defendant.
The Commissioner submitted a report on 17.03.2010 answering the queries raised by the respective parties, wherein it is categorically stated that the 1st defendant has constructed a house in Site No.13 which belonged to the plaintiff and it is also shown in the sketch that Site Nos.13 and 16 are adjacent to each other. The specific boundaries have also been given in the Commissioner's report specifically mentioning the suit schedule property bearing Site No.13 and also Site No. 16, which is alleged to have been granted in favour of the 1st defendant. I have already noted above, the boundaries of Site No.13. The 1st Defendant has claimed Site No.16, which is having boundaries as under:-
East : By Site No.13 West : By Site No.17 North : By Road South : By Thimmegowda's property
17. The said site No.16 measures 36 ft. x 41 ft. Therefore, the trial Court and the First Appellate Court on appreciation of the oral and documentary evidence 13 on record, have come to the conclusion that the 1st defendant has denied title of the plaintiff sofar as Site No.13 is concerned and made attempts to lay foundation in the property of the plaintiff and therefore, by virtue of the amendment to the plaint, granted declaration and as well as Mandatory Injunction and directed the 1st defendant to deliver vacant possession of Site No.13 in favour of the plaintiff.
18. The First Appellate Court has also on re- appreciation of the evidence on record, come to the conclusion that the plaintiff has acquired the property by virtue of Government Grant. After appreciation of the documents to that effect viz., Hakku Patra, Tax Paid Receipts, Demand Register Extract and Assessment List as per Exs. P1 to P4 and the Photographs marked at Exs. P7 to P9, it has come to the conclusion that the suit Site bearing No.13 belonged to the plaintiff. The Court has also considered the evidence of the 1st defendant and the documents viz, Gift Deed alleged to have been executed by the plaintiff in favour of Defendant No.2, Grant Certificate in respect of Site No.16 and the Tax 14 Paid Receipt, Assessment List, Licence, Certificate (marked as Exs. D1 to D7) pertaining to Site no.16 and has come to the conclusion that the sites of the plaintiff and the 1st defendant are altogether different, though they are situated adjacent to each other, but they are not one and the same. Therefore, it is crystal clear that the plaintiff and the 1st defendant are claiming the rights over their respective sites. It is the case of the plaintiff that the 1st defendant has laid foundation on her property. Though it is stated that the 1st defendant has constructed a house in Site No.16 and is residing therein, it goes without saying that the plaintiff's allegation is that the 1st defendant has put-up the construction in the property of the plaintiff in Site No.13. Considering all these factors, the trial Court and the First Appellate Court have definitely come to the conclusion that Site No.13 belongs to the plaintiff and Site No.16 belongs to the 1st defendant and as the 1st defendant has denied the title of the plaintiff and also possession over the property, the courts have also found that 1st defendant has made some construction in 15 Site No.13 and it shows that he illegally occupied and entered into possession of Site No.13. Therefore, the Courts have granted the relief of decree of declaration, mandatory injunction and recovery of possession.
19. Having discussed about the above factual aspects, let me answer the above substantial questions of law framed by this court.
Regarding Substantial question of law No.1:
20. This question refers to the pleadings of the parties. It is the contention of the learned counsel that, after filing of written statement by the 1st defendant, the plaintiff has amended the plaint and sought for declaration and as well as recovery of possession and Mandatory injunction by converting her prayer from permanent injunction to that of declaration, mandatory injunction and recovery of possession. The contention of the 1st defendant is that, there is no corresponding pleading in the plaint stating on what date exactly the 1st defendant dispossessed the plaintiff and put-up construction, in order to hold that the plaintiff was dispossessed from the property and entitled to recovery 16 of possession. In the absence of such pleadings in the plaint, any amount of evidence will not come to the help of the plaintiff. Therefore, the trial Court and the First Appellate Court have not properly appreciated this aspect.
21. In the above background, it is to be seen that the suit is filed by the plaintiff before the gross root Court, ie., Civil Judge, Junior Division. The parties are residing in Thadagawadi in Arakere Hobli, Srirangapatna which is a small village. In moffusil places, the pleadings are being drafted by the Advocates depending upon their acumen, perception of law and factual- understanding. It is quite natural that they may not in detail and specifically say about the facts involved in a particular case. Therefore, the court should not give, much importance to some lapses in pleadings so as to pin-point that there is no specific pleadings as such in particular words to bring it within the four corners of particular law. What the Courts have to do in such circumstances is to read the entire plaint averments and also the averments made in the written statement 17 and find-out as to what exactly was the intention of the plaintiff to come before the court; what he wants from the court; what he has pleaded in the plaint. The court also should look into the defence of the defendant in order to ascertain whether the defendant has really understood the case of the plaintiff and met the case pleaded by the plaintiff so that the court can, on over all reading of the plaint and the written statement, come to the conclusion as to what exactly the contentious issue is between the parties, so that the court can frame issues and cast the burden on the parties. Therefore, it goes without saying that, on a meaningful reading of the entire pleadings of the parties, if the court is satisfied that, by way of their pleadings the parties have understood their respective cases, the court has to frame necessary issues and thereafter the parties having understood as to what exactly they have to prove before the court. In such circumstances, the duty of the court is to scrutinize whether the parties have actually led any evidence with reference to their pleadings. After appreciating the evidence and over all 18 looking into the material available before it, Court has to decide whether the plaintiff is entitled to any relief or all the reliefs.
22. It is trite that, substantive laws would give rights to the parties and also fix liability on the other party. While dealing with substantive right of the parties, the court should not make the parties to go out of the court or non-suit the parties mainly because of some technical defects which may be there in the plaint and which do not actually go to the root of the case of the parties. In this background, now let me see whether there is any pleading with regard to title of the property and for recovery of possession, and any pleading with regard to any construction by the 1st defendant or not, and whether the plaintiff really intended the court to pass an order with respect to recovery of possession.
23. Before adverting to the above said aspects, it is just and necessary to go through the decisions cited by the learned counsel for the appellant. He relied upon a decision reported in ILR 2007 KAR 339 between 19 Sri. Aralappa Vs. Sri. Jagannath and Others, Head Note-B regarding Declaration of Status and Right and also Discretion of Court, reads as under:
Head Note -B : Specific Relief Act, 1963 - Section 34 - Declaration of status or right - Discretion of Court - Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit- Further held, when the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief - The appropriate relief consequential to declaration of ownership would be recovery of possession of the property- When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. - Court below was justified in dismissing the suit as not maintainable.... ...."
24. The learned counsel cited this particular decision to draw the attention of the court to the effect that there is no specific prayer for recovery of possession in the plaint. But the above said decision, in my opinion, is not in a straightjacket manner applicable to the present facts and circumstances of the case, in 20 view of the relief of possession being sought by way of amendments to the plaint.
25. On a careful and meticulous reading of the plaint averments and the additional written statement filed by the 1st defendant, the plaint clearly discloses that, subsequently after filing of the suit, the plaintiff has amended the plaint, wherein she has sought for declaration of her title and for mandatory injunction directing the 1st defendant to demolish the illegal construction made in suit schedule property and also for recovery of possession of the suit schedule property. On two occasions, the plaintiff has amended the plaint. In all, by way of the above said amendments, the reliefs have been claimed. According to this decision, the suit cannot be maintained without a prayer for declaration and for recovery of possession, when the title of the plaintiff is denied and the plaintiff is shown to be out of possession of suit schedule property. But in this case, in my opinion, the plaintiff has rightly amended the plaint and sought for necessary reliefs, to which she is entitled to as on the date of the suit and as well as 21 subsequent to the suit. Therefore, the contention based on this ruling, in my opinion, does not hold any water. In this background, now let me consider the pleadings of the parties to consider as to whether it is sufficient to hold that the plaintiff has really intended to claim declaration, recovery of possession and mandatory injunction, but not suitably preferred in the prayer column.
26. As I have already narrated, in the plaint the plaintiff has stated as to how she acquired the suit schedule property ie., by virtue of the Government Grant dated 13.02.1976 and produced the tax paid receipts etc., to show that she had been exercising her ownership over the property. Further it is also stated that the 1st defendant trespassed into the property of the plaintiff, though knowing fully well that he has no manner of right, title or interest over the property. In the plaint, it is also categorically stated that the 1st defendant has made attempts to get the katha changed into his name in the absence of the plaintiff. All the facts stated in the plaint clearly goes to show that the 22 plaintiff in so many words has stated that she is the owner of the property and virtually the 1st defendant has denied her title and made attempts to interfere with her possession. It is also specifically stated by the plaintiff at Paras-4 and 5 of the plaint that, the 1st defendant taking advantage of her absence from the village, has trespassed into the suit site of the plaintiff and put-up foundation for construction of house in the said property and thereby interfered with the plaintiff's possession and enjoyment of the property. That also makes it clear that, the plaintiff in so many words has categorically stated the entry of the 1st defendant into the suit schedule property and putting-up some sort of construction, in the suit property. Therefore, though initially she did not claim for recovery of possession, perhaps on the advice of her counsel, she rightly made necessary amendment to the plaint.
27. Last but not least, the plaintiff has categorically stated that her right has been affected by tress-pass by the 1st defendant into her site. Nature of the property is the site and that itself clearly goes to 23 show that the interference made by him to be shown by means of some activity of the 1st defendant and the interference need not be by way of squatting over the property. The act of laying foundation and construction of house on the suit property by the 1st defendant itself is sufficient to show the interference by him. In that manner, Para-4 of the plaint is sufficient to show that the plaintiff has alleged that, the 1st defendant has encroached upon her property in order to lay some foundation.
28. Under the above facts and circumstances, though specific averment is not made in the plaint with regard to encroachment of property and as well as dispossession by the 1st defendant, considering the nature of the property, the dispossession can be inferred by the court. Therefore, there are sufficient pleadings in the plaint also corresponding to this aspect. Earlier there were no prayers for declaration, recovery of possession and mandatory injunction. Though the pleadings were there, prayer was not there. Therefore, the plaintiff converted the suit for declaration and other 24 reliefs. As such, it is not that the prayer has been amended without any pleading therein. Hence, I am of the opinion that the argument of the learned counsel is not tenable. Hence, the first substantial question of law framed by this Court to that effect has to be answered in favour of the plaintiff (respondent herein) holding that there are sufficient pleadings in correspondence with the prayer sought for by the plaintiff.
Regarding substantial question of law No.2
29. Coming to the second substantial question of law, learned counsel for the appellant strenuously contends that the trial Court and the First Appellate Court have not considered the specific averment with regard to possession of property. Without there being any specific issue casting burden on the parties, the court cannot give a finding on such issue. In this context, the learned counsel has relied upon a ruling reported in AIR 1968 SC 534 between Sita Ram Vs. Radha Bai and Others, wherein it has been observed at Para-11 as under:-
[
11. xxx xxx xxx xxx xxx 25 ."In so observing, in our judgment, the learned Trial Judge determined an issue which did not arise on the pleadings of the parties.
If the plaintiffs case as set out in the plaint be accepted, Gomti Bai knew that jewellery of the family was handed over by the plaintiff to Lachhmi Narain, and it was agreed between the contesting parties that the jewellery was to be retained by the plaintiff. No argument was apparently addressed before the High Court on the case which appealed to the Trial Court. There was no specific plea raised in the Trial Court on that part of the case, and the parties did not go to trial on that issue. Again, unless the parties were proved to be pari delicto the plea that the action instituted by the plaintiff was not maintainable cannot succeed."
30. Though on a plain hearing, the argument of the learned counsel appears to be attractive, on meticulous consideration of the issues framed, this court is of the opinion that the issues cover all the pleadings of the parties.
31. As I have already narrated, the issues framed by the trial Court, particularly, the second issue 26 which is framed casting burden on the plaintiff to show that whether the 1st defendant has encroached over the suit schedule property and has put-up construction, clearly indicates that the plaintiff and the 1st defendant have contradicted each other with regard to the possession. The 1st defendant claimed that the plaintiff was never in possession, but the plaintiff said that the defendant has dispossessed her and encroached upon the suit schedule property and put-up construction thereon. On that basis, it is to be considered whether the plaintiff is entitled to declaration and mandatory injunction, and whether the plaintiff is entitled to permanent injunction and the court has also framed an issue as to consider whether the suit is maintainable without seeking possession. This issue must have become redundant in view of the amendment to the plaint regarding recovery of possession. Therefore, on over all looking into the materials on record, Issue No.2 clearly discloses that the trial Court has specifically cast the burden on the plaintiff to prove that, the 1st defendant had encroached the suit schedule property. 27 If such finding is given to that particular issue, the next substantial relief would be for delivery of possession of the property in favour of the plaintiff. Of course, there is no specific issue framed by the trial Court as to whether the plaintiff is entitled for recovery of possession. But, an over all reading of all the issues shows that the trial Court has in fact covered the pleadings of the parties regarding possession also. The above said issues include possession of the 1st defendant over property and loss of possession by the plaintiff and illegal construction by the 1st defendant over the suit schedule property. When such a situation arises, how the appellate courts have to consider this non-framing of issues or wrong framing of an issue, is the next question to be answered.
32. Order XIV Rule 1 of CPC says that, when a material preposition of fact or law is affirmed by one party and denied by other, there arises an issue of fact and an issue of law. The court has to frame issues on the basis of contentions and denials made by the parties. If there is any omission to frame such issues or 28 there is any irregularity in framing of issues, whether that itself is sufficient to non-suit the plaintiff, is the question. The failure to frame an issue is not always fatal to a suit, provided the court has understood the case of the plaintiff and the defendant, and framed certain issues which in fact covers all the pleadings and contentious facts stated by the plaintiff and the defendant. On going through such materials, if substantial justice has been administered by the Court, then omission to frame a specific issue, will not become fatal. The party has to specifically show to the court that non-framing of such an issue, certainly caused prejudice to him, that means no opportunity was given to the party to lead evidence and the party has not understood the case of the plaintiff or the defendant to lead appropriate and adequate evidence. Therefore, a mere non-framing of an issue cannot be said to cause prejudice to the party when both the parties have understood as to what are their cases and how they have to lead evidence; what burden is cast upon them and what they have to seek before the Court. 29
33. It is also to be borne in mind that where the issues do not sufficiently direct the attention of the parties to the main question of fact necessarily to be decided and the party is misled, or confused or prevented from adducing the evidence, then only it would cause prejudice to the party and the trial will stand vitiated. However, one must clearly bear in mind that omission to frame a particular issue or framing of any issue incorrectly or the issue if found defective or imperfect or improper, or wrong, it will not always be a fatal or vitiating factor. A vital point to be considered by the Court is that, whether the parties are not prejudiced and the parties having understood their cases, went to the trial knowing that same facts are in issue and adduced the evidence, or disposal of the case on merits, is not affected and substantial justice has been done. If it is established that, the parties are alive to the controversy between them and substantially led the evidence on it, and they have discussed it during the trial, it cannot be said that, 30 mere non-framing of specific issue would uproot the entire case.
34. It is the basic fundamental principle of civil jurisprudence that even some procedural irregularities occurred during the course of granting substantive reliefs to the parties, the court has got ample power to mould the relief in order to avoid multiplicity of proceedings between the parties. It is also to be borne in mind that all the controversy between the parties, which are pleaded and the parties are allowed to prove those pleadings, should be set at rest, by ignoring minor irregularities in following the procedure. The substantive rights arising out of substantive laws prayed by the parties and the rights which are all available to the parties at the time of filing of the suit, shall be adjudicated at once, at the time of the conclusion of the suit. These principles should be borne in mind in order to avoid dragging the parties to some other Forum to seek for their remedies. This also saves valuable time of the court and also valuable time and money of the parties.
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35. Now returning to the facts of this case, what I have already observed is, though some irregularity has occurred in framing issues, in fact, the parties have really understood what are their cases and they have adduced evidence with reference to the declaration, mandatory injunction, illegal construction over property and all the factual aspects have been in detail made by both the parties in their evidence. After considering such over all evidence, the trial Court and the First Appellate Court have definitely come to the conclusion that Site No.13 belonged to the plaintiff and 1st defendant is in no way connected to the said property and thereby granted the relief in favour of the plaintiff. Therefore, I do not find any reason to hold that the trial court has committed any serious legal error, which caused prejudice in not specifically framing any issue with regard to recovery of possession and it caused any prejudice to the defendant. Hence, the second substantial question of law is also answered in favour of the respondent (plaintiff).
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36. In view of the above said answer given by this court on the above substantial questions of law, the appeal deserves to be dismissed. Hence, the following order:
ORDER The appeal is dismissed with costs.
Sd/-
JUDGE KGR*