C.P. Mahadeva Setty Vs. Ningamma - Court Judgment

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civil procedure code, 1908 (central act v of 1908) - order 41 rule 25--in a suit for declaration of title & possession, trial court did not frame issues for possession & mesne profits--in appeal, lower appellate court framed additional issues and remanded the case--parties being aware of their case & having led their evidence, held, in second appeal, lower appellate court's remand was liable to be set aside as those issues were covered. ; when issue no. 5 was there indicating that the plaintiff has to prove as to what relief he is entitled and to what decree he is entitled. definitely, the issue was clearly in the mind of the plaintiff so as to prove to what decree or order i.e., decree for declaration, decree for possession and decree for mesne profits he is entitled for. until the court did record that the evidence was not sufficient to enable it to pronounce the judgment, the appellate court had no power to remand the case; instead if is its duty to decide the case and issues therein on merits. - land acquisition act (1 of 1894)sections 23 & 54: [a.n.venugopala gowda,j] determination of compensation-claimant having valued and claimed market value of acquired property at rate of rs.65,000/- per acre in court below also had paid court-fees accordingly- held, he cannot claim compensation at rs. 80,000/- per acre, in second appeal. particularly, when no reasons or explanation of whatsoever nature has been offered. section 23: [a.n.venugopala gowda,j] determination of compensation held, court may in the absence of any direct evidence of sale, consider awards passed in respect of lands acquired in same or adjoining village. sale deed of property executed three years after acquisition of land in question cannot be considered. section 23: [a.n.venugopala gowda,j] determination of compensation - sale deed sought to be produced at appellate stage - claimant, however, is not diligent and has not made any efforts, had sufficient opportunity to give evidence in reference court held, application for additional evidence viz. sale deed is liable to be rejected. section 23(1-a) :[a.n.venugopala gowda, j] award of interest beyond date of taking of possession of acquired property held, it is illegal-notwithstanding fact that respondent has not filed an appeal or cross-objection with regard to granting of interest beyond said date, award of interest beyond the date of taking of possession of acquired property is illegal. order 41, rule 33 of c.p.c., empowers the appellate court to grant relief to respondent. - 2. the plaintiff-respondent filed the suit for declaration of right, title and possession with respect to the suit property as well as for recovery of mesne profits from july 1983 till the date of delivery of vacant possession. it was also agreed that until the payment of amount by the plaintiff, defendant is to enjoy the property and as soon as the amount is paid back, the property will be restored back by the defendant to the plaintiff. , in other words, it held that the plaintiff failed to prove that the plaintiff was the owner of the property in suit and was in its possession under any deed of purchase dated 11.1.1978. the trial court further answered issues no. therefore, these two new issues were well known and were covered by issue no. that the rule 25 of the order 41 further points out that when the court below has failed to frame and try certain issues and determine certain question of fact and those questions of fact which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court shall frame issues and remit these issues for trial and finding to the court from whose decree the appeal is preferred. rule 24 of order 41 of the code which is referred to above, clearly provides that where the evidence on the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, it necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. if after resettling the issues, evidence on record appears to the appellate court to be sufficient, then the appellate court should decide the matter and should not remand the case as remand has ordinarily been condemned as it only lengthens the litigation. it is urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by maina kuer could not be brought on record. as already pointed out above, the contesting defendants clearly stated in their written statements that maina kuer was not the auction purchaser of the land in dispute. the courts should be loath to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation. ' what was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality on them. ' one feels tempted to add that if life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down. it would have been better for the courts to frame the issues very clearly. 5 was there, it was well known to the plaintiff as to what he has to prove and in respect of which what evidence he has to give. thus new issues framed by appellate court have been covered well by and under issue no.hari nath tilhari, j.1. this is an appeal under order 43 rule 1(u) of code of civil procedure from the judgment and order of remand dated 15.2.1995 passed by sri h.r. sudheer, learned civil judge and jmfc. nanjangud in the district of mysore.2. the plaintiff-respondent filed the suit for declaration of right, title and possession with respect to the suit property as well as for recovery of mesne profits from july 1983 till the date of delivery of vacant possession. the plaintiff's case as per the plaint allegations has been that plaintiff is the owner and in possession of the suit property, having purchased the said property under the registered sale deed dated 11.1.1978 and thereafter he is in enjoyment of the property as owner thereof. plaintiff's case is that plaintiff was in need of money. so under an agreement dated 10.6.1981, the plaintiff delivered the vacant possession of the suit property to the defendant and raised a loan of rs. 1100. the plaintiff's case under the agreement that it was agreed that within a period of two years the plaintiff will repay the amount and property will be delivered back by the defendant to the plaintiff. it was also agreed that until the payment of amount by the plaintiff, defendant is to enjoy the property and as soon as the amount is paid back, the property will be restored back by the defendant to the plaintiff. the plaintiff further alleged that the plaintiff had paid the loan amount which she had taken from the defendant and the defendant returned the agreement after recovery with assurance to deliver the possession within a week. the plaintiff's case is that the defendant did not redeliver the possession of the property to the plaintiff. the plaintiff's case is that the defendant is not entitled to retain the possession of the property and does not have any right, title and interest over the property. the plaintiff's further case is that the defendant has been liable to pay the mesne profits from july 1983 till the actual date of delivery of vacant possession. with these allegations the plaintiff claimed the following reliefs:-a) decree for declaration of title and for possession;b) decree for delivery of vacant possession of the suit property by the defendant in respect of the plaintiff; andc) decree for recovery of mesne profits from july 1983 till the actual date of delivery of vacant possession from the defendant; plaintiff's further claim that if there is any other relief which court deems fit may also be granted as a residuary clause. the suit was contested by the defendants who filed their written statement. that in the bases of pleadings of parties, the trail court framed the following issues:-1) does the plaintiff prove that she was the owner and in possession of the suit schedule property by purchasing it under a deed dated 11.1.1978?2) does she further prove that she has delivered the property to the defendant on an agreement as per the agreement dated 10.6.1981?3) does she further prove that she has paid a sum of rs. 2,000/- to the defendant?4) is she entitled for declaration and injunction? 5) to what order and decree? 3. the trial court after having tried the case recorded its finding to that effect that the plaintiff had not been entitled to the grant of reliefs claimed or sought in the suit and dismissed the same.4. the learned munsiff while dismissing the suit, answered the issue no. 1 in negative i.e., in other words, it held that the plaintiff failed to prove that the plaintiff was the owner of the property in suit and was in its possession under any deed of purchase dated 11.1.1978. the trial court further answered issues no. 2 and 3 in affirmative i.e., it held that the plaintiff proved that she had delivered the property to the defendant on an agreement as per agreement dated 10.6.1981. the trial court, with reference to issue no. 3, further held that the plaintiff had paid rs. 2,000/- to the defendant. the trial court determined issue no. 4 in negative holding that the plaintiff is not entitled for the declaration and injunction and with reference to issue no. 5, the trial court held that the plaintiff is not entitled to claim any relief as claimed in the suit. with these findings, the trial court has dismissed the suit in toto.5. having felt aggrieved from the judgment and decree of the learned munsiff, the plaintiff preferred regular first appeal no. 69/ 88. the learned civil judge without going into the issues involved and the findings recorded by the trial court allowed the appeal on one simple ground. the lower appellate court had opined that the issue no. 4 which was to the effect that the plaintiff is entitled for declaration and injunction, - was absolutely unnecessary and was not based on the pleadings of the parties. he further opined that the proper issues which ought to have been framed by the learned munsiff should have been:1) whether the plaintiff is entitled for possession of the property?2) whether the plaintiff is entitled for mesne profits? the lower appellate court, thus, took a view that these two issues should have been framed and as these two issues have not been framed, the lower court, after deleting issue no. 4 and framing two new issues, held that the case should be remanded for trial.6. having felt aggrieved by the order of remand, the defendant has come up with this appeal under order 43 rule 1(u) of the code of civil procedure. i have heard sri s.n. keshava murthy, learned counsel for the defendant-appellant and also sri s. shivanand, learned counsel for the respondent.7. the learned counsel for the appellant contended before me that in this case the remand was not at all necessary. the order of remand is illegal. the learned counsel for the appellant submitted that as regards to new issues no. 1 and 2, they were definitely there in the form of issue no. 5 as to what relief is plaintiff is entitled for or to what order and decree the plaintiff is entitled. therefore, these two new issues were well known and were covered by issue no. 5 and with knowledge the parties led the evidence in the case. he submitted that issue no. 4 was not without pleadings. the learned counsel for the appellant submitted that there may be slight mistake in framing of issue no. 4. issue no. 4 ought to have been is the plaintiff is entitled for declaration and possession. issue no. 4 was that is the plaintiff entitled for declaration and injunction, where injunction is a typographical mistake. the learned counsel for the appellant submitted that there was no need to remand.8. the learned counsel for the respondent hotly contested these contentions and submitted that parties can lead evidence on all the issues which are in between the parties and which are framed. he further submitted that the defendant is not going to be prejudiced from the remand order and therefore remand order is not to be interfered with.9. i have applied my mind to the learned contentions made by the learned counsel for the parties. before i proceed further, it appears profitable on my part to refer to the provisions of order 41 rule 23, rule 23a, rule 24 and rule 25. order 41 rule 23 provides that, in case where the trial court has disposed of the suit upon a preliminary point and the decree is reversed on that point, then the appellant court may remand the case with a further direction as to what issue or issues shall be tried in the case so remanded and direct the trial court to re-admit the suit under its original number and proceed to determine the suit and after recording the evidence on issues which are framed or to be framed.rule 23a confers power on the court that if a suit has been decided otherwise than on a preliminary point and the decree is reversed by the appellate court and trial of the case afresh is considered by it necessary, the appellate court shall have the same powers of remanding as under rule 23.10. that a reading of rule 23-a of order 41 of cpc which used the expression 'considers necessary' per se indicates that it means judiciously considers necessary. in other words, for the facts and circumstances to be indicated or shown, it considers necessary, it may remand for retrial. that the rule 25 of the order 41 further points out that when the court below has failed to frame and try certain issues and determine certain question of fact and those questions of fact which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court shall frame issues and remit these issues for trial and finding to the court from whose decree the appeal is preferred. it may further direct the court below to take additional evidence and record its finding on those issues and send back to the record of the case with additional evidence if any, to the appellate court along with its findings thereon.rule 24 of order 41 of the code which is referred to above, clearly provides that where the evidence on the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, it necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. a reading of rule 24 indicates that if evidence is there on record, then after resettling the issues, the appellate court should decide the matter on merits. this provision empowers the appellate court to decide the dispute on merits even after resettling the issues, if the evidence is sufficient on record. if the appellate court thinks that evidence on record is not sufficient to enable it to decide the case on merits, then it can remand. so it points out that if the court after resettling the issues and thinks of remand, it must show that the evidence on record is not sufficient to enable it to decide. if after resettling the issues, evidence on record appears to the appellate court to be sufficient, then the appellate court should decide the matter and should not remand the case as remand has ordinarily been condemned as it only lengthens the litigation.11. before i proceed further, i think it proper in this stage to make a reference to the observations of hon'ble mr. justice h.r. khanna in this regard, in the case of bechan pandey and ors. v. dulhin janki devi and ors., air 1976 sc 866 wherein it is held that,'9. prayer has also been made by mr. sarjoo prasad for the remand of the case to the trial court as the plaintiff-appellants were labouring under the impression that the defendant-respondents had not disputed that the land in dispute was the same as had been purchased by maina kuer. it is urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by maina kuer could not be brought on record. we find it difficult of accede to his prayer. as already pointed out above, the contesting defendants clearly stated in their written statements that maina kuer was not the auction purchaser of the land in dispute. in view of that unequivocal averment, there was no valid basis for the assumption or the impression under which the plaintiff-appellants are stated to have laboured. apart from that, we find that the suit out of which the present appeal has arisen was filed as long ago as january 1950. from the title of the appeal we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed, and are no more in the land of the living, having bowed as it were to the inexorable law of nature. they are now represented by their legal representatives. to remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal. it is time, in our opinion, that we draw the final curtain and put and end to this long meandering course of litigation between the parties. if the passage of time and the laws of nature bring to an end the lives of men and women it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead. to do so would in effect be defying the laws of nature and offering a futile resistance to the revise of time. if human life has a short span, it would be irrational to entertain a taller claim for dispute and conflicts which are a manifestation of human frailty. the courts should be loath to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation.' it may be appropriate in the above context to reproduce what was said in the case of sant narain matur v. rama krishna mission: (air 1974 sc 2241):'it is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its embers to smolder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. one is tempted in this context to refer to the observations of chief justice crewe in a case concerning peerage claim made after the death without issue of the earl of oxford. said the learned chief justice:time hath its revolutions; there must be a period and an end to all temporal things an end of names, and dignities and whatsoever is terrene, and why not of de vere? for where is bohun? where is mowbray? where is mortimer? why, which is more and most of all, where is plantagenet? they are all entombed in the urns and sepulchers of mortality.' what was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality on them.' one feels tempted to add that if life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down.' 12. the plaintiff in this case has claimed reliefs for declaration of his right, and of title, to the suit property. the plaintiff has claimed the relief for a decree for possession with respect to the property. the plaintiff has claimed for a decree or order for recovery of mesne profits for the period commencing from july 1983 till the date of delivery of actual possession. these three reliefs have been claimed. issue no. 5 says, to what order and decree? it means to what order and decree is the plaintiff entitled. it would have been better for the courts to frame the issues very clearly. the courts should frame the issues so that even an ordinary person should understand. issue no. 5 says 'to what order and decree' which means to what order and decree is the plaintiff is entitled for i.e., to what relief the plaintiff is entitled as claimed in the plaint? in other words, is the plaintiff is entitled to the decree for declaration, decree for possession and decree for recovery of mesne profits. when the plaintiff files a suit for certain decree or for certain reliefs, the plaintiff knows what are all the reliefs he is claiming, and burden is on him to prove that he is entitled to get the reliefs he is claiming in the suit. so when issue no. 5 was there, it was well known to the plaintiff as to what he has to prove and in respect of which what evidence he has to give. the plaintiff led the evidence. thus new issues framed by appellate court have been covered well by and under issue no. 5 in respect of issue no. 4 it cannot be said that it was unnecessary and if issue no. 4 was unnecessary then two issues framed by appellate court were also unnecessary as issue no. 5 covered point that were under the two new issues and issue no. 4 and in fact issue no. 4 and new issues 1 and 2 were nothing but amplification of issue no. 5. issue no. 4 required only correction by substitution of expression 'possession' in place of expression 'injunction' used therein and after resettling the issue, the lower appellate court could have decided the appeal on merits.13. the trial court framed the issues with respect to the relief clause whether the plaintiff is entitled for possession and recovery of mesne profits. these issues could not be said that they were not known to the plaintiff when he adduced the evidence. issue no. 1 was also framed by the trial court i.e., whether the plaintiff proves that she was the owner and in possession of the suit schedule property. so declaration of title was also covered by issue no. 1. the lower appellate courts judgment and order does not indicate that it was the plaintiff's grievance that he had to lead the evidence to prove his title, to prove that he is entitled to get the decree for possession or decree for mesne profits. there is nothing in the judgment to indicate that this was the grievance made by the plaintiff in the trial court or in the lower court. when issue no. 5 was there indicating that the plaintiff has to prove as to what relief he is entitled and to what decree he is entitled. definitely, the issue was dearly in the mind of the plaintiff so as to prove to what decree or order i.e., decree for declaration, decree for possession and decree for mesne profits he is entitled for.in this view of the mater, in my opinion, the order of remand cannot be said to be justified either under order 41 rule 23, rule 23a or rule 25. further the lower appellate court nowhere expressed the opinion in its judgment that the evidence on record was not sufficient to enable it to pronounce the judgment. until the court did record that the evidence was not sufficient to enable it to pronounce the judgment, the appellate court had no power to remand the case; instead it is its duty to decide the case and issues therein on merits. the suit has been filed in the year 1986 and after nine years it was being remanded. in my opinion, in view of the facts and circumstances indicated above, it appears just and appropriate that the remand order be set aside and the appellate court be directed to decide the appeal on merits on the basis of material on record. it will be, no doubt, open to the court to call for additional evidence, if necessary, under order 41 rule 27 cpc in terms of the rule.with these observations, the remand order is set aside. the appeal under order 43 rule 1(u) is hereby allowed with a direction to the lower appellate court that the civil judge concerned to decide the appeal on merits according to law.the appeal is allowed with costs.