Sanju Panda, J.
1. This Civil Revision is directed against the impugned Judgment and decree dated 18.3.2006 and 30.3.2006 respectively passed by the Learned Addl. District Judge, Jajpur in Money Appeal No. 6 of 1996 dismissing the appeal on contest without cost.
2. The brief facts of the case are as follows; Petitioner is the Defendant No. 2 in the suit for damage. Opposite Parties as the Plaintiffs filed the suit claiming damage of Rs. 960/- from the Defendants along with cost of the suit. Plaintiffs pleaded in the plaint that they purchased the disputed property from the Defendants on 5.6.1979 for a consideration of Rs. 1000/-. After purchase, they were possessing the property since 5.6.1979 by growing paddy. The land has been settled in the name of the Plaintiffs and they were paying rent for the suit land. While the matter stood thus, on 7.12.1990 the Defendants with the help of some labourers cut away and removed the crops raised by the Plaintiffs in the suit land. It is further stated that since the Defendants did not possess the disputed property or raise any crops, they are liable to pay damages to the Plaintiffs. As Defendant No. 1 did not contest the suit, he was set ex parte on 10.9.1991. Defendant No. 2 filed her written-statement traversing the plaint allegations and stated that the suit was barred by Section 39 of the Orissa Estate Abolition Act due to the pendency of the appeal before the SubCollector, Jajpur and the disputed land was recorded as 'Bajyapti Madhya Satwadhikary' in the name of Gobinda Debata, who died leaving behind his only son Brundaban Debata. The Defendants are his successors-in-interest. Defendant No. 1 is the son and Defendant No. 2 is the daughter of said Brundaban Debata. Defendant No. 1 is insane from his childhood. Defendant No. 2 married to one Harihara Panda who resided in her house as illatum son-in-law and taking advantage of illiteracy of Defendant No. 2 and insanity of Defendant No. 1, the Plaintiffs obtained a false and fabricated document and got the suit land settled in their names. After knowing about the fraudulent transaction and settlement of the land in favour of the Plaintiffs, the Defendants preferred an appeal before the Sub-Collector, Jajpur against the settlement order. In the said appeal, the Sub-Collector, Jajpur reversed the settlement of land in the names of the Plaintiffs and the Defendants harvested the crops raised by them. As such, the Plaintiffs are not entitled to any damage. On the above pleadings, the Learned Civil Judge (Junior Division), Jajpur formulated as many as five issues which are as follows:
1. Is the suit maintainable?
2. Is the suit barred by law of limitation?
3. Have the Plaintiffs any cause of action to file this suit?
4. Are the Plaintiffs entitled to relief of damage as prayed for by them?
5. To what other relief(s), if any, the Plaintiffs are entitled 7.
3. In order to prove their respective cases, Plaintiffs examined as many as three witnesses out of whom P.W.1 is the Plaintiff and P.Ws. 2 and 3 are co-villagers. They also adduced documentary evidence which were marked as Ext.1 to Ext 5/a. Those are registered sale deed, certified copy of order in O.E.A Case No. 704 of 1994 and 706 of 1984, finger print examination report, etc. Defendants also examined as many as four witnesses and exhibited documents which are marked as Ext A to Ext G. The Learned Civil Judge after analyzing the evidence on record came to the finding that in view of the evidence of P.Ws. 2 and 3 coupled with the evidence of P.W.1 and the rent receipt as per Ext 4 series, possession of the Plaintiffs over the suit land in the year 1990 is established and that the Plaintiffs had raised the crops and the same was removed by the Defendants through their labourers in the year 1990. Thus, Plaintiffs were entitled to get damage of Rs. 960/- from the Defendants. On the above findings, the Learned Civil Judge decreed the suit without going into the title of the disputed properties. It appears that no specific issue was framed with regard to the title of the parties and the said issue was also not contested by the parties by adducing adequate evidence to that regard but the Trial Court has made observations regarding the title of the parties.
4. Being aggrieved by the decree passed by the Learned Civil Judge, Defendant No. 2 along with Defendant No. 1 filed an appeal in the Court of Learned Addl. District Judge, Jajpur and the same was registered as Money Appeal No. 6 of 1996. The Learned Addl. District Judge observed that this is not a fit case where the Court is to address itself regarding the title of the parties over the suit land. The suit is for damage towards loss of disputed crops of the Plaintiffs. Thus, the Court is only concerned to decide who had actually raised the disputed crops and who had possessed the suit land. On the above formulated point, the Learned Addl District Judge decided the appeal on merit. Admittedly, during the pendency of the appeal, the suit land was settled in favour of the Defendants by the O.E.A. Collector in O.E.A. Case Nos.704 and 706 of 1984. The Appellate Court, while deciding the point formulated by it, went into the merits regarding valid title of the parties to the disputed properties and the observations regarding title of the parties made in the appeal as well.as in the suit, are to be expunged as no specific issue had been formulated by the Trial Court in that respect and the parties, have not adduced any evidence on the said issue.
5. The main grievance of the Petitioner in this revision is that without framing an issue the finding recorded by both the Courts below is erroneous and not sustainable in the eye of law which needs to be expunged, as parties had not led any evidence to that respect and they had not contested the suit regarding the title of the parties. The suit is for limited purpose, i.e., whether Plaintiffs are entitled to damage or not. Thus, any finding made, by the Courts below is not binding on the Defendants and the said question will be decided in a separate suit constituted for the declaration of right, title and interest. Thus, interference of this Court under Section 115 of the Civil Procedure Code (in short, 'the Code') is warranted, as this matter arises out of a money claim and the valuation of the suit is only Rs. 9607- and in view of Section 102 of the Code, no second appeal will lie.
For better appreciation, Section 102 of the Code is quoted below:
102. No second appeal in certain cases - No second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.
Admittedly, the valuation of the suit is only Rs. 960/-. this revision is maintainable in view of the aforesaid provision.
6. So far as the second submission of the Petitioner is concerned, admittedly the suit is for damage and the Learned Trial Court has not formulated any issue regarding the title to the disputed properties and the parties have also not adduced any evidence in support of their respective title. The respective case of the parties in the present revision reveals that they contested the suit for damage, not title to any property. Regarding framing of issue, the duty rests under the Code on the Court, and it would be unsafe to presume, from the failure of the Court to raise the necessary issues, an intention of the Defendants to admit the facts which the Plaintiff was bound to prove. The evidence led in respect of an issue on which the parties actually went to trial should not be made the foundation for decision on another different issue, which was not present in the mind of the parties and on which they had no opportunity of adducing evidence. In such circumstances, the Court should not give finding on such issue. If a point is not clearly raised in the plaint or in the issues and if it would result in prejudice to the Defendants if the suit is decided on the point, the Court should not give any finding to that effect, as that would result in a fatal mis-trial of the cause which vitiates the proceeding and renders a new trial necessary. The decision of the Court must be confined to the question raised. Hence, the observation of the Courts below that Defendants had executed the sale deed and the same is a valid document has no basis or the said finding has been recorded without any material evidence available on record. Since both the Courts below have exercised their jurisdiction with material irregularity, this Court interferes with the impugned Judgment and decree by setting aside the findings regarding title of the parties. It is open to the parties to challenge the title in a separate suit. Accordingly, the impugned orders of both the Courts below are set aside.
The Civil Revision is allowed. There shall be no order as to costs.