“1. Whether the Plaintiffs and His Brother Kulwinder Are Owners Vs. Sukhwinder Singh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1138541
CourtPunjab and Haryana High Court
Decided OnApr-24-2014
Appellant“1. Whether the Plaintiffs and His Brother Kulwinder Are Owners
RespondentSukhwinder Singh
Excerpt:
107 in the high court of punjab and haryana at chandigarh rsa no.1989 of 2014 (o&m) date of decision:24. 04.2014 jasbir singh ...appellant v/s. sukhwinder singh ...respondent coram: hon'ble mr. justice rakesh kumar jain. present: mr. b.r. mahajan, advocate for the appellant. mr. sandeep khunger, advocate for the caveator/respondent. *** rakesh kumar jain, j.(oral). the substantial question of law, raised by learned counsel for the appellant, is as to “whether the trial court is obliged to decide all the issues in terms of order 20 rule 5 cpc”.. the defendant is in appeal against the judgment and decree of both the courts below. after the pleadings in the suit for permanent injunction was over, as many as six issues were framed by the trial court which are reproduced as under: -“1. whether the plaintiffs and his brother kulwinder are owners in possession of the suit property?. opp.2. whether the sale deed allegedly executed by defendant in favour of plaintiff and his brother are legal or valid?. opp.3. whether the defendant is of unsound mind was not competent to execute alleged sale deed in favour of plaintiff and his brother?. opp.4. whether the partition taken place on 18-08-2004?. opp.5. whether the plaintiff has no locus standi to file present suit?. opd.6. relief.”. divyanshi 2014.04.29 11:11 i attest to the accuracy and integrity of this document high court chandigarh rsa no.1989 of 2014 (o&m) -2- when the plaintiff was to start his evidence, he moved an application for amendment of the plaint on the ground that the defendant had forcibly taken possession over the land in dispute despite the orders of status quo. the amendment was granted. the plaintiff filed amended plaint to which amended written statement and replication were filed and the trial court further framed two more issues on 11.02.2009 which are reproduced as under: - “present: counsel for the parties. replication has been filed. copies supplied. on the basis of amended pleadings of the parties, following additional issues were framed: - 5a whether the plaintiff is entitled to possession of land measuring 35 kanals 4 marlas?. opd. 5b whether suit is bad for mis-joinder and non-joinder of necessary parties?. opd no other issue arises nor pressed for now file to come up on 30.4.2009 for evidence of the plaintiff. sd/- roshan lal chohan acj112.2009”. thereafter, both the parties led their respective evidence and the trial court decided issues no.1, 2 and 4 together in favour of the plaintiff, issue no.3 also in favour of the plaintiff and issue no.5 against the defendant. the issue of relief was decided ultimately in favour of the plaintiff to the effect that the defendant was directed to hand-over possession of the suit land to the plaintiff within a period of two months. the defendant filed the statutory first appeal and as per learned counsel for the appellant, one of the ground taken was: - “that the ld. trial court has not taken up nor given its findings on the additional issue framed by the predecessor of this hon'ble court after the amendment vide its order dated divyanshi 11.2.2009. that the following issues “5-a”. and “5-b”. were 2014.04.29 11:11 i attest to the accuracy and integrity of this document high court chandigarh rsa no.1989 of 2014 (o&m) -3- framed by the hon'ble predecessor of this hon'ble court: - i) whether the plaintiff is entitled to possession of the land measuring 35 k-4ms?. opp. ii) whether the suit is bad for mis-joinder and non-joinder of necessary parties?. opd. the ld. trial court has omitted to discuss these issues though the same were argued before it. that as such the impugned judgment is liable to be set-aside, on this ground alone.”. however, the appellate court did not advert to the arguments raised by the appellant on issues no.5a and 5b which were not decided by the trial court and the appeal was dismissed only referring to issues no.1, 2 and 5. aggrieved against the judgment and decree of both the courts below, the present appeal has been filed in which the learned counsel for the appellant has argued that the judgment and decree of both the courts below are patently erroneous and illegal as both the courts below have not decided issues no.5a and 5b which were specifically been framed after the pleadings were amended for seeking possession. learned counsel for the respondent is on caveat, has otherwise vehemently argued that in so far as issue no.5b is concerned, that has been taken care of in the proceedings initiated by brother of the defendant when he had filed an application under order 1 rule 10 to become a party. the said application was allowed by the trial court on 03.11.2001 but dismissed by this court when the revision filed by the plaintiff was allowed on 24.09.2012. he further submits that the matter even went to the apex court where the slp was disposed of on 11.02.2013 with an observation order that any decree passed in the present suit would not effect the rights of the petitioner therein as he was not a party divyanshi 2014.04.29 11:11 i attest to the accuracy and integrity of this document high court chandigarh rsa no.1989 of 2014 (o&m) -4- to the suit. learned counsel for the respondent has further argued that in so far as issue no.5a is concerned, it was only an issue qua prayer which has been taken care of in the relief clause. in this regard, learned counsel for the appellant has submitted that order 41 rule 31 of cpc categorically provides as what should be the contents of the judgment. he has submitted that the judgment of the appellate court should be in writing discussing the points for determination and the decision thereon with the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled should be categorically mentioned. it is submitted that the learned appellate court has failed to discuss the points after formulating while dismissing the appeal filed by the plaintiff in-as-much as no reference has been made in the entire judgment in respect of the failure of the trial court in deciding issues no.5a and 5b. it is also submitted that no evidence has been discussed by the appellate court at all though it was incumbent upon it to discuss being the last court of fact. in this regard, he has relied upon judgment of this court in the case of gurcharan singh v/s. gurcharan singh, 2000(1) rcr (civil) 80 and of the apex court in the case of b.v. nagesh and another v/s. h.v. sreenivasa murthy, 2011(1) rcr (civil) 802. i have heard learned counsel for the parties and perused the record. order 20 rule 5 of the cpc provides that “in suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit”.. it provides that trial court should decide all the issues separately but it can still give its divyanshi 2014.04.29 11:11 i attest to the accuracy and integrity of this document high court chandigarh rsa no.1989 of 2014 (o&m) -5- findings by clubbing one or two issues if they are inter-related but the trial court has failed to even refer to these issues and appellate court, has also not looked into this aspect of the matter whereas it was one of the substantial ground taken in the grounds of appeal as claimed by learned counsel for the appellant and was pressed. thus, the judgment and decree of both the courts below are apparently erroneous and against the procedure. learned counsel for the respondent, on instructions from the respondent, who is present in court submits that let the judgment and decree of both the courts below be set aside and the matter be remanded back to the trial court to decide issues no.5a and 5b but as he has purchased the property after paying due consideration and the defendant who himself is the vendor had forcibly taken the possession over the property in dispute, the trial court may be directed to decide the additional issues as early as possible and preferably within some time frame. in view of the facts and circumstances, as narrated above, i have found substance in the question of law framed by learned counsel for the appellant and the same is decided in his favour. the judgment and decree of both the courts below are hereby set aside and the matter is remanded back to the trial court to take a decision afresh after appreciating the evidence already on record while deciding issues no.5a and 5b. this exercise shall be done by the trial court within three months from the date of appearance of the parties. parties are directed to appear before the trial court on 14.05.2014. april 24, 2014 (rakesh kumar jain) divyanshi judge divyanshi 2014.04.29 11:11 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

107 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1989 of 2014 (O&M) Date of Decision:

24. 04.2014 Jasbir Singh ...Appellant V/s. Sukhwinder Singh ...Respondent CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN. Present: Mr. B.R. Mahajan, Advocate for the appellant. Mr. Sandeep Khunger, Advocate for the caveator/respondent. *** RAKESH KUMAR JAIN, J.

(Oral). The substantial question of law, raised by learned counsel for the appellant, is as to “whether the trial Court is obliged to decide all the issues in terms of Order 20 Rule 5 CPC”.. The defendant is in appeal against the judgment and decree of both the Courts below. After the pleadings in the suit for permanent injunction was over, as many as six issues were framed by the trial Court which are reproduced as under: -

“1. Whether the plaintiffs and his brother Kulwinder are owners in possession of the suit property?. OPP.

2. Whether the sale deed allegedly executed by defendant in favour of plaintiff and his brother are legal or valid?. OPP.

3. Whether the defendant is of unsound mind was not competent to execute alleged sale deed in favour of plaintiff and his brother?. OPP.

4. Whether the partition taken place on 18-08-2004?. OPP.

5. Whether the plaintiff has no locus standi to file present suit?. OPD.

6. Relief.”

. Divyanshi 2014.04.29 11:11 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1989 of 2014 (O&M) -2- When the plaintiff was to start his evidence, he moved an application for amendment of the plaint on the ground that the defendant had forcibly taken possession over the land in dispute despite the orders of status quo. The amendment was granted. The plaintiff filed amended plaint to which amended written statement and replication were filed and the trial Court further framed two more issues on 11.02.2009 which are reproduced as under: - “Present: Counsel for the parties. Replication has been filed. Copies supplied. On the basis of amended pleadings of the parties, following additional issues were framed: - 5A Whether the plaintiff is entitled to possession of land measuring 35 Kanals 4 Marlas?. OPD. 5B Whether suit is bad for mis-joinder and non-joinder of necessary parties?. OPD No other issue arises nor pressed for Now file to come up on 30.4.2009 for evidence of the plaintiff. Sd/- Roshan Lal Chohan ACJ112.2009”. Thereafter, both the parties led their respective evidence and the trial Court decided issues No.1, 2 and 4 together in favour of the plaintiff, issue No.3 also in favour of the plaintiff and issue No.5 against the defendant. The issue of relief was decided ultimately in favour of the plaintiff to the effect that the defendant was directed to hand-over possession of the suit land to the plaintiff within a period of two months. The defendant filed the statutory first appeal and as per learned counsel for the appellant, one of the ground taken was: - “That the Ld. Trial Court has not taken up nor given its findings on the additional issue framed by the predecessor of this Hon'ble Court after the amendment vide its order dated Divyanshi 11.2.2009. That the following issues “5-A”. and “5-B”. were 2014.04.29 11:11 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1989 of 2014 (O&M) -3- framed by the Hon'ble Predecessor of this Hon'ble Court: - i) Whether the plaintiff is entitled to possession of the land measuring 35 K-4Ms?. OPP. ii) Whether the suit is bad for mis-joinder and non-joinder of necessary parties?. OPD. The Ld. Trial court has omitted to discuss these issues though the same were argued before it. That as such the impugned judgment is liable to be set-aside, on this ground alone.”

. However, the appellate Court did not advert to the arguments raised by the appellant on issues No.5A and 5B which were not decided by the trial Court and the appeal was dismissed only referring to issues No.1, 2 and 5. Aggrieved against the judgment and decree of both the Courts below, the present appeal has been filed in which the learned counsel for the appellant has argued that the judgment and decree of both the Courts below are patently erroneous and illegal as both the Courts below have not decided issues No.5A and 5B which were specifically been framed after the pleadings were amended for seeking possession. Learned counsel for the respondent is on caveat, has otherwise vehemently argued that in so far as issue No.5B is concerned, that has been taken care of in the proceedings initiated by brother of the defendant when he had filed an application under Order 1 Rule 10 to become a party. The said application was allowed by the trial Court on 03.11.2001 but dismissed by this Court when the revision filed by the plaintiff was allowed on 24.09.2012. He further submits that the matter even went to the Apex Court where the SLP was disposed of on 11.02.2013 with an observation order that any decree passed in the present suit would not effect the rights of the petitioner therein as he was not a party Divyanshi 2014.04.29 11:11 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1989 of 2014 (O&M) -4- to the suit. Learned counsel for the respondent has further argued that in so far as issue No.5A is concerned, it was only an issue qua prayer which has been taken care of in the relief clause. In this regard, learned counsel for the appellant has submitted that Order 41 Rule 31 of CPC categorically provides as what should be the contents of the judgment. He has submitted that the judgment of the appellate Court should be in writing discussing the points for determination and the decision thereon with the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled should be categorically mentioned. It is submitted that the learned appellate Court has failed to discuss the points after formulating while dismissing the appeal filed by the plaintiff in-as-much as no reference has been made in the entire judgment in respect of the failure of the trial Court in deciding issues No.5A and 5B. It is also submitted that no evidence has been discussed by the appellate Court at all though it was incumbent upon it to discuss being the last Court of fact. In this regard, he has relied upon judgment of this Court in the case of Gurcharan Singh V/s. Gurcharan Singh, 2000(1) RCR (Civil) 80 and of the Apex Court in the case of B.V. Nagesh and another V/s. H.V. Sreenivasa Murthy, 2011(1) RCR (Civil) 802. I have heard learned counsel for the parties and perused the record. Order 20 Rule 5 of the CPC provides that “in suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit”.. It provides that trial Court should decide all the issues separately but it can still give its Divyanshi 2014.04.29 11:11 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.1989 of 2014 (O&M) -5- findings by clubbing one or two issues if they are inter-related but the trial Court has failed to even refer to these issues and appellate Court, has also not looked into this aspect of the matter whereas it was one of the substantial ground taken in the grounds of appeal as claimed by learned counsel for the appellant and was pressed. Thus, the judgment and decree of both the Courts below are apparently erroneous and against the procedure. Learned counsel for the respondent, on instructions from the respondent, who is present in Court submits that let the judgment and decree of both the Courts below be set aside and the matter be remanded back to the trial Court to decide issues No.5A and 5B but as he has purchased the property after paying due consideration and the defendant who himself is the vendor had forcibly taken the possession over the property in dispute, the trial Court may be directed to decide the additional issues as early as possible and preferably within some time frame. In view of the facts and circumstances, as narrated above, I have found substance in the question of law framed by learned counsel for the appellant and the same is decided in his favour. The judgment and decree of both the Courts below are hereby set aside and the matter is remanded back to the trial Court to take a decision afresh after appreciating the evidence already on record while deciding issues No.5A and 5B. This exercise shall be done by the trial Court within three months from the date of appearance of the parties. Parties are directed to appear before the trial Court on 14.05.2014. April 24, 2014 (RAKESH KUMAR JAIN) Divyanshi JUDGE Divyanshi 2014.04.29 11:11 I attest to the accuracy and integrity of this document High Court Chandigarh