Jammu & Kashmir High Court
Mohini Devi vs Suresh Kumar And Ors. on 7 October, 2006
Equivalent citations: 2007(1)JKJ470, AIR 2007 (NOC) 863 (J. & K.)
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This civil second appeal No. 25/1999 is directed against the judgment and decree dated 26th of April 1999 passed by the Additional District Judge, Kishtwar in File No. 6/Appeal being First Civil appeal titled as Shanti Devi v. Suresh Kumar and Ors. whereby and where under appeal of appellant-plaintiff, Shanti Devi came to be dismissed and judgment and decree dated 30th of September 1997 passed by the trial Court (Sub Judge) came to be confirmed dismissing the suit titled Shanti Devi v. Suresh Kumar and Ors., which shall be referred to hereinafter "impugned judgment".
2. Civil Second Appeal No. 26/1999 is directed against the judgment and decree dated 26th of April 1999 passed by Additional District Judge, Kishtwar in Civil First Appeal No. 5/Appeal titled as Shanti Devi and Anr. v. Suresh Kumar and Ors.whereby and where under the appeal of the appellant-plaintiff came to be dismissed and judgment and decree dated 30th of July 1997 passed by trial Court (Sub-judge) in terms of the suit titled as Jodh Ram v. Suresh Kumar and Ors.came to be confirmed, which shall be hereinafter referred to as "impugned judgment".
3. Shanti Devi died during the pendency of the appeal and respondent No. 4, Mohini Devi came to be transposed as appellant in Civil Second Appeal No. 25/1999. Mohini Devi was already figuring as appellant No. 2 in Civil Second Appeal No. 26/1999 and accordingly necessary entries came to be made by the Registry in the cause title in terms of order dated 20th of July 2000.
FACTUAL BACKGROUND OF THE CASE OF CSA No. 25/1999.
4. Shanti Devi filed a suit for declaration declaring gift deed dated 27th of July 1983 executed by one Jodh Ram (who was arrayed as defendant No. 4 in the suit) in favour of defendants respondents 1 to 3 in respect of land mentioned in the Gift deed falling under Survey No. 233 Min, 357,613,658, 188 and 784 comprising Khewat No. 30 situated at village Lachkhazana void and ineffective and inoperative against the rights of the plaintiff and liable to be set aside as the claim of plaintiff-Shanti Devi for maintenance was a charge on the Estate of Jodh Ram, husband of plaintiff.
5. Further it is averred in the plaint that Mohini Devi, daughter of Shanti Devi and Jodh Ram had married with one Ashok Kumar against the wishes of her father, Jodh Ram which constrained him to shift to the house of his brother, during the course of which Jodh Ram executed a gift deed in favour of defendants-respondents I to 3 without any right. Jodh Ram could not transfer the suit property in favour of respondents 1 to 3 because Shanti Devi-plaintiffs claim for maintenance was the first charge.
6. The defendants-respondents I to 3 resisted the suit. Following issues came to be framed:
1. Whether plaintiff has right of maintenance charge over the suit land? If so, how? O.P.P.
2. On proof of Issue No. I whether the gift deed executed by defendant No. 4 in favour of defendants No. 1 to 3 is inoperative against her interest? O.P.P
3. Whether plaintiff has no cause of action? O.P.D.
4. Relief.
7. The parties led evidence and after hearing the arguments, the Trial Court dismissed the suit vide judgment and decree dated 30th of September 1997. Feeling aggrieved by the said judgment and decree, Plaintiff- Shanti Devi preferred First Civil Appeal before Additional District Judge, Kishtwar and it came to be dismissed vide impugned judgment. All the issues framed were questions of fact. Both the trial Court as well as appellate Court have determined all the issues.
FACTUAL BACKGROUND OF THE CASE OF CSA No. 26/1999:
8. Jodh Ram filed a suit against defendants 1 to 3 before the Court of Sub-Judge, Kishtwar for cancellation of a gift deed executed on 27th of April 1983, and also sought for a decree of permanent Prohibitory Injunction restraining defendants 1 to 3 from causing interference with the possession over the suit land and also restraining them from raising any construction over the said land, on the grounds taken in the memo of plaint. Jodh Ram sought cancellation on the ground that Vishwa Nath was his real brother and in the month of June 1983 plaintiffs daughter had married on her own free will and against the wishes of her father, as such,- plaintiff lost his mental balance, upon which, the father of the defendants-respondents took him to his house and by practising undue influence brought him under the influence of liquor and managed to get the gift deed executed and registered on 27th of July 1983 and thereafter turned him out of his house. Respondents-defendants were requested to get the gift deed cancelled by the plaintiff-Jodh Ram and admit his right over the land but they refused to accede to the request of the plaintiff which constrained the plaintiff to file a suit.
9. Defendants-respondents resisted the suit on the ground that the gift deed was validly executed and Jodh Ram was in complete senses. The allegations of fraud, undue influence and inducement were also denied by them. They also averred that possession of the suit land was also delivered by the donor Jodh Ram in their favour and the gift deed having been validly executed the same could not be cancelled and the suit of the plaintiff-Jodh Ram was not maintainable and was liable to be dismissed. The following issues came to be framed:
1. Whether the plaintiff has lost his senses in ending 6/83, because his daughter had married against his will? OPP
2. If the issue No. 1 is proved in affirmative, whether the father of defendant and real brother of plaintiff by practising fraud on the plaintiff and taking undue advantage of the situation got the gift deed executed in favour of defendants and also made plaintiff to use intoxicants for getting gift deed executed in favour of his sons? OPP
3. Whether the land in dispute is in possession of the plaintiff if so, whether defendants are interfering with their possession? OPP
4. in case issue No. 3 is not proved in affirmative, whether the suit without prayer for possession is not maintainable? OPP
5. Relief.
10. The parties examined witnesses and the trial Court after appreciation of the evidence and after considering the arguments of the learned Counsel for the parties, dismissed the suit vide judgment and decree dated 30n of July 1997 by Sub-Judge. Kishtwar. Feeling aggrieved by the said judgment, appellants, i.e., Shanti Devi and Mohini Devi, preferred an appeal before Additional District Judge, Kishtwar which came to be dismissed vide judgment and decree dated 26th of April 1999. Feeling aggrieved of the said judgment, the appellants have preferred this Civil Second Appeal.
11. It appears that original plaintiff Jodh Ram died during the pendency of the suit and his legal heirs namely, Shanti Devi, widow and Mohini Devi came to be arrayed as legal representatives-plaintiffs in the suit and during the pendency of this appeal, Shanti Devi also passed away. Mohini Devi, who was figuring as appellant No. 2, was treated as legal representative of appellant No. 1. Accordingly necessary entries were made vide interim order dated 20th of August, 2000.
12. Both these appeals came up for consideration before this Court on 4th of August, 1999 and the following substantial questions of law came to be framed:
(i) Whether the gift deed executed by Sh. Jodh Ram in favour of the respondents in respect of agricultural land challenged in the suits is hit by Section 31 of the Agrarian Reforms Act and is, therefore, void abinitio
(ii) Whether the gift deed dtd. 27.3.83 is void, because the donees were under legal disliability to accept it as required under Section 122 of the Transfer of Property Act and the findings returned by the two courts below in this behalf are perverse based on misapprecia-tion of evidence?
(iii) Whether the finding with regard to the possession returned by the two courts below is based on mis-reading of the evidence and as such is perverse requiring interference by this Court?
(iv) In case validity of the gift deed is dependent upon the transfer of possession of the agricultural land, whether the civil court is competent to determine the facturn of possession, in view of the bar enacted by Section 19 of the Agrarian Reforms Act?
(v) Whether the widow of the donar has a charge on the property and therefore, gift made by her husband is invalid?
13. Learned Counsel for the parties addressed arguments in both the appeals.
Heard. Perused. Considered.
The suit of Mohini Devi which has given birth to the second Appeal No. 25/1999 revolves round the issue that whether plaintiff-Shanti Devi had charge on the property of Jodh Ram and therefore, gift made by him was void The issues came to be framed as referred to hereinabove and decided in favour of the defendants- respondents 1 to 3. The questions of fact were involved and parties have led evidence after proper appreciation of the evidence, the trial Court, dismissed the suit and also the Appellate Court dismissed the appeal and up-held the judgment.
14. Learned Counsel for the appellant half heartedly argued that question No. 5 which came to be framed vide order dated 4th of August, 1999 is the substantial question of law involved in this appeal.
15. Learned Counsel for the respondents argued that this question is purely a question of fact. The trial Court as well as Appellate Court have determined the issues properly after appreciating the evidence and have not committed any illegality and have not fallen in error. Both the judgments are not perverse, in any way. Learned Counsel for the appellant could not substantiate how question No. 5 is a substantial question of law and how the trial Court as well as appellate Court judgments are perverse.
16. I have gone through the entire evidence and the impugned judgments, I am of the considered view that the judgment of both the Courts are perfectly legal and need no interference.
17. Question No. 5 referred to hereinabove is not at all question of law, not to speak of substantial question of law but revolves round the questions of fact. There is also nothing on the file that the trial Court/appellate Court have wrongly appreciated the evidence and the judgments are in any way perverse.
18. In the given circumstances, Appeal No. 25/1999 merits to be dismissed and the impugned judgment and decree merits to be upheld. Accordingly, Appeal No. 25/1999 is dismissed.
Registry is directed to prepare decree sheet and sent down the records along with copies of this judgment and decree.
CSA No. 26/1999.
19. The bone of contention before the Trial Court was whether Jodh Ram, original plaintiff, had lost senses when he executed impugned gift deed and father of respondents defendant 1 to 3 had induced him to execute gift deed by practising fraud and undue influence and had taken advantage of the plaintiff being under influence of liquor at the time of execution and registration of gift deed. All these questions have been thrashed out by the trial Court. Legal heirs of the plaintiff, i. e. Shanti Devi and Mohini Devi, preferred an appeal before the Court of Additional District Judge, Kishtwar which came to be dismissed.
20. The appellants have agitated and projected all the grounds which they had taken in the memo of plaint and in addition to that appellants had also taken two issues contained in grounds (g) & (h) and in the last but one para of the memo of first civil appeal.
21. It appears that the appellate Court has discussed the issues and determined the validity of gift deed while considering grounds taken in paras (g) and (h) of that appeal but has not discussed the point/ground contained in last but one para of the memo of appeal. Appellate Court dismissed the appeal and confirmed the judgment of the trial Court and also held that the gift deed was valid.
22. It appears that in addition to the grounds taken in the memo of appeal before the First appellate Court, appellants have raised another issue before this Court in this Civil Second Appeal that whether Civil Court was competent to determine the fact of possession in view of the bar enacted by Section 19 of the Agrarian Reforms Act.
Substantial questions 1 to 4 relate to this appeal.
Learned Counsel for the appellant vehemently argued that the substantial questions of law are involved in this appeal and are also of great public importance.
23. The following are the points projected by the appellant:
1. That the gift deed dated 27th of March 1983 is void because the donees were minors at that relevant point of time and were not competent to accept the same in terms of mandate of Section 122 of Transfer of Property Act;
2. The impugned gift deed was hit by mandate of Section 31 of the Agrarian Reforms Act, thus the gift deed is void;
3. That Civil Court had no jurisdiction to determine the factum of possession in terms of mandate of Section 19 of the Agrarian Reforms Act.
24. Learned Counsel for respondents argued that all these issues have not been pleaded and were not in issue before the Trial Court; the Appellate Court was having jurisdiction to determine these issues and accordingly it has rightly dismissed the appeal vide impugned judgment. No substantial question of law is involved in this appeal.
25. The core question for consideration is whether the First Appellate Court has the jurisdiction and power and was justified in dealing with the issues not framed by the Trial Court and further is also a question that what procedure was to be adopted and followed by the First Appellate Court if it had the jurisdiction and power to deal with those issues which were not framed by the trial Court.
26. I am of the considered view that substantial questions of law, which are really involved in this appeal, are as follows:
(1). That whether the lower appellate Court is having powers to decide the issue/issues which was/were not pleaded and framed by the trial Court.
(2). That what procedure the Appellate Court had to follow if those issues were framed which were not framed by the trial Court.
Learned Counsel for the parties also addressed the arguments on these questions.
27. In order to determine these substantial, questions of law, it is necessary to notice the relevant Code of Civil Procedure, Svt. 1977 (Act No. X of 1977), for short the 'Code', heroin as under
100. Second appeal (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall He to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question; Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reason to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involved such question.
28. This provision empowers this Court to hold whether the substantial questions of law formulated are not involved in the appeal after hearing the respondents. But this provision also empowers this Court to frame any other substantial question(s) of law if the Court is satisfied that such questions are involved in the appeal. Accordingly in terms of mandate of this provision, substantial questions of law referred to hereinabove came to be framed.
29. Section 107 of the Code deals with the powers of the appellate Court. It is profitable to reproduce Section 107 herein as under:
107. Powers of Appellate Court.
(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be same duties as are conferred and imposed by this Courts of original jurisdiction in respect of suits instituted therein, Order 41 Rule 2:
2. Grounds which may be taken in appeal The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule; Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
It is profitable to reproduce Order 41 Rule 25 herein as under:
25. Where appellate Court may frame issues and refer them for trial to" Court whose decree appealed from: Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;
And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.
30. This provision of law gives power to the appellate Court to determine the case finally, to remand the case, to frame issue/issues and refer them for trial and also appellate Court can take additional evidence or direct the trial Court to take evidence. Subject to these powers, the appellate Court has the same powers and duties which the Court of original jurisdiction is having in respect of the suits. The plain reading of these provisions of law, mandate that the appellate Court can frame additional issue(s) and can direct the trial Court to decide those issue(s) or can decide those itself.
31. Applying the test to the instant case, the appellants-Shanti Devi and Mohini Devi, have taken in the memo of appeal the additional issues/points referred to hereinabove and had also projected those issues before the appellate Court. But the appellate Court has decided only one point without framing issue(s) and has not decided second point, as discussed hereinabove. The third point which has been raised by the appellant before this Court is that Civil Court was not having the jurisdiction to determine the fact of possession in view of the bar enacted under Section 19 6f the Agrarian Reforms Act. But the question is that these points were not pleaded before the trial Court. The question is whether this issue can be now taken and dealt with.
32. The Apex Court in Viswanatha Achari v. Kanakasabapathy reported in 2005 AIR SCW 2589 held that the appellate Court has the powers to frame issues other than those framed at the Trial Court. It is profitable to reproduce paras 9 and 10 of the said judgment herein as under:
9. A question was also formulated i.e. whether the lower appellate Court is justified in dealing with issues other than those framed by the Trial Court and deciding the same in favour of the plaintiff depriving the defendant the opportunity to counter the plaintiffs evidence. It has been clearly stated that there was no issue framed regarding the adverse possession. The lower Appellate Court was not justified in deciding issues which were not framed. The High Court seems to have taken a view that there was no direct reference to the issue of adverse possession. But that is really of no consequence when the specific stand of the appellant was that there was no issue framed relating to adverse possession and, therefore, the First Appellate Court should not have recorded any finding on that regard. The Trial Court had not specially framed any issue relating to adverse possession. Under Section 107 of the CPC, the Appellate Court has power to frame issue other than those framed by the trial Court. But here again the requirement is to refer them for trial. Consequently, the defendant would have got opportunity to adduce evidence in that regard.
10. Above being the position, the conclusions of the High court do not appear to be correct, the judgment cannot be maintained and is accordingly set aside. The matter is remitted to the High Court for fresh consideration. It is made clear that we have not expressed any opinion on the merits of the case.
33. Applying the test in the instant case, the Lower Appellate Court has jurisdiction to frame additional issues but it had not done so. The First Appellate Court has only decided and determined one issue without framing issue but has also not considered the issue pertaining to the applicability of Section 31 of the Agrarian Reforms Act.
34. I am of the considered view that the appellate Court had the power and jurisdiction to take note of these points and frame issues. The Apex Court in a case Additional I.T Commissioner v. East Coast Floor Mills Pvt. Ltd. reported in AIR 1994 SC 1513 held that additional grounds can be taken in appeal before the appellate Court which are purely questions of law. It is profitable to reproduce para 3 of the said judgment herein.
3. So far as the second question is concerned, the grievance of the commissioner of Income Tax in the reference before the High court was that the Tribunal should not have allowed the assessee to raise an additional ground for the first time before it. Both the High Court and the Tribunal have pointed out that the additional ground sought to be raised was purely one of law and was only an aspect of a question raised at earlier stages. We see no reason to differ from the view of the High Court on the second question as well. In the result, the answer given by the High Court are upheld. The appeal is dismissed. There will, however no order as to costs.
35. The Apex Court in a case titled Shyam Singh v. Daryao Singh reported AIR 2004 SC 348 held that additional issues of facts and law resulted out of subsequent legal developments can be raised and determined. It is profitable to reproduce para 20 of the said judgment herein.
20. The additional grounds urged in this appeal as a result of subsequent legal developments of consolidation of holdings under the Act of 1953 raise issues both of fact and law. We consider it just and proper to remand the case to the trial Court for deciding these, additional issues arising on facts and law.
36. In the given circumstances, I am of the considered view that First Appellate Court had failed to exercise the jurisdiction in terms of mandate of Section 107 of the Code read with Order 41 CPC. The appellant had the powers to frame the additional issues and refer to the trial Court for trial or could have taken additional evidence or directed the trail Court to take additional evidence. The Appellate Court was within its jurisdiction also to decide issue/issues which were purely of law, but Appellate Court has fallen in error while passing the impugned judgment.
37. Having glance of the above discussion, this appeal merits to be allowed and impugned judgment and decree required to be set aside. Accordingly, this appeal is allowed and impugned judgment is set aside. The case is remanded back to the appellate Court and accordingly the appeal shall revive and appellate Court shall decide whether any additional issue/issues are to be framed while keeping in view the discussion made hereinabove and the law applicable and has to follow the procedure contained in the Code.
38. Registry to prepare a decree sheet and send down the file along with copies of the judgment and decree to the Appellate Court. The parties are directed to cause appearance before the Appellate Court on 19.10.2006.