CRP/1418/2010 of Prathapa Radhamma Vs Prathapa Komuraiah ( died ) on 30 December 2010

ORDER:

This is a revision petition filed by the plaintiffs against the orders of thetrial Court in I.A.No.557 of 2008 in O.S.No.25 of 1996 dated 09.03.2010refusing to frame proposed additional issue as sought for by the petitioners.

2. The facts, in brief, are as follows:

(a) The plaintiffs/petitioners herein filed a suit for declaration of title andpossession by alleging that they are the absolute owners of suit scheduleland admeasuring Ac.1.32 guntas in Sy.No.131/B at Huzurabad. Theplaintiffs claim that prior to them – the husband of the first plaintiff and thefather of the plaintiffs 2 to 4 – was the original owner and the plaintiffssucceeded to the property after his death.

It is alleged that the suit land was leased out to the defendants on ½ crop share basis and that on their failing to give the share in crops afterApril 1995 and on their denial of title of the plaintiffs and refusal to vacate theland, the plaintiffs filed the present suit for declaration and possession.

(b) Defendants filed written statement, inter alia, denying plaintiffs’ titleand also claimed that the husband of the first plaintiff and father of plaintiffs 2to 4 had sold the suit property to them under a document dated 26.08.1957and received entire sale consideration and as such, claimed title andpossession as owners over the suit land. In the alternative, they alsoclaimed adverse possession from 26.08.1957.

(c) With reference to the said averment in the written statement theplaintiffs filed additional pleadings objecting to the said document dated26.08.1957 as inadmissible being unstamped and unregistered. Defendantsagain filed additional written statement alleging that the said sale deed hasbeen duly validated under the Record of Rights Act and that appropriatemutation has also been done.

3. It is alleged by the petitioners that they had sought framing on anappropriate issue relating to the said document relied upon by the defendantsand gave draft issues also to the Court. But, however, the issues that areframed in the suit in June 2000 are as follows:

1. Whether the plaintiffs are entitled for the declaration of their title to the suit land?

2. Whether the plaintiffs are entitled for the possession of the suitland?land?

3. Whether the plaintiffs are entitled to mesne profits?

4. To what relief?

4. It appears that the trial in the suit has opened and plaintiffs haveexamined their witnesses and the suit is now coming up at the stage ofcross-examination of D.W.3. At this stage, the petitioners filed the presentapplication being I.A.No.557 of 2008 seeking framing of additional issue, asfollows:

“Whether the husband of the plaintiff No.1 and father of plaintiffs 2 to4 sold the suit land to the father of defendants No.1 to 3 and executed the sale deed dated 26.08.1957 in theirfavour, as alleged in para No.1 of the written statement? If so, whether the same is valid and admissible in evidence?”

5. The said application was contested by the respondents/defendants byalleging that similar application of the plaintiffs filed earlier was rejected by thetrial Court vide orders dated 02.07.2003 and as such, the earlier rejectionamounts to res judicata. Under the impugned order, the Court belowobserved that every denial in the written statement need not give rise toframing of issue and that even in the absence of pleading and an issue,findings may be recorded when parties choose to adduce evidence on anyparticular matter. To the extent of admissibility of said document marked asEx.B1, is concerned, the matter ultimately came to be decided by this Courtin CRP.No.4681 of 2003 dated 08.03.2006 and to that extent the proposedadditional issue does not survive.

6. Mr. S. Surya Prakasa Rao, learned counsel for thepetitioners/plaintiffs, has contended that the impugned order of the Courtbelow, if allowed to stand, would defeat the very purpose of Order XIV Rule 1of the Code of Civil Procedure, 1908 inasmuch as the material proposition onfacts and on law as affirmed by the parties must form basis of and be framedas issues. He submits that so far as interlocutory matters are concerned, there is nothing like res judicata between the parties and there is noimpediment for framing additional issue even if the memo to that effect filedby the plaintiffs was earlier rejected by the Court below.

7. Mr. B. Narasimha Sarma, learned counsel for therespondents/defendants, on the contrary, placed strong reliance upondecision of this Court in NARSINGH SINGH v. SMT. URMILA BAI[[1]]andsubmits that in a suit for possession by the landlord the issue relating todefendants’ title is totally unwarranted.

8. The point, therefore, that falls for consideration is whether it isnecessary for the Court below to have framed additional issue to the extentof material proposition on fact pleaded by the defendants viz. that thepredecessor of the plaintiffs sold the suit schedule property to the father ofthe defendants under Ex.B1 dated 26.08.1957.

9. Order XIV CPC deals with settlement of issues and determination ofsuit on such issues. For the purpose of the present case, it would beappropriate to extract relevant part of Order XIV Rule 1 CPC:

ORDER XIV

SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ONISSUES OF LAW OR ON ISSUES AGREED UPON

1. Framing of issues.-

(1) Issues arise when a material proposition of fact or law isaffirmed by the one party and denied by the other.affirmed by the one party and denied by the other.

(2) …

(3) Each material proposition affirmed by one party and denied byother shall form the subject of a distinct issue.other shall form the subject of a distinct issue.

(4) …

(5) At the first hearing of the suit the Court shall, after reading theplaint and the written statements, if any, and [after examinationunder Rule 2 of Order X and after hearing the parties or theirpleaders], ascertain upon what material propositions of fact orof law the parties are at variance, and shall thereupon proceedto frame and record the issues on which the right decision ofthe case appears to depend.plaint and the written statements, if any, and [after examinationunder Rule 2 of Order X and after hearing the parties or theirpleaders], ascertain upon what material propositions of fact orof law the parties are at variance, and shall thereupon proceedto frame and record the issues on which the right decision ofthe case appears to depend.

Order XIV Rules 3 and 5 also are relevant, which are as follows:

3. Materials from which issues may be framed. – The Court mayframe the issues from all or any of the following material: -frame the issues from all or any of the following material: - (a)allegations made on oath by the parties, or by anypersons on their behalf, or made by the pleaders ofpersons on their behalf, or made by the pleaders of such parties, (b)allegations made in the pleadings or in answers tointerrogatories delivered in the suit;interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

4. …

5. Power to amend and strike out issues.-

1. The Court may at any time before passing a decree amendthe issues or frame additional issues on such terms as itthinks fit, and all such amendments or additional issues asmay be necessary for determining the matters incontroversy between the parties shall be so made or framed.the issues or frame additional issues on such terms as itthinks fit, and all such amendments or additional issues asmay be necessary for determining the matters incontroversy between the parties shall be so made or framed.

2. The Court may also, at any time before passing a decree,strike out any issues that appear to it to be wrongly framedor introduced.strike out any issues that appear to it to be wrongly framedor introduced.

10. A look at the above provisions would show that material proposition offact, which is under contest between the parties, is with respect to allegedsale of the suit schedule property by the predecessor of the plaintiffs to thepredecessor of the defendants under Ex.B1. Ex.B1 being allowed andmarked in evidence on the basis of prima facie satisfaction that thoughunregistered, it is admissible in evidence under proviso to Section 49 of theRegistration Act and further detailed aspects concerning Ex.B1 viz. it’sgenuineness and validity are matters at large at the hearing of the suit itself,as held by this Court in CRP.No.4681 of 2003 dated 08.03.2006, referred toabove. The existence of said contentious issues between the parties is,therefore, evidenced from the respective pleadings and I am unable toappreciate resistance of the Court below or for that matter opposition by therespondents/defendants to frame additional issue in that aspect.

11. In a suit for declaration and possession, as prayed by thepetitioners/plaintiffs, the previous ownership of the predecessor of thepetitioners/plaintiffs is not in dispute and unless the defendants succeed inestablishing that transaction of sale in favour of their predecessor, as allegedby them, the issues 1 and 2, as originally framed by the Court below, are inall probabilities likely to be answered in favour of the petitioners/plaintiffs. Theonly defence, which is material on the facts and circumstances, therefore, isthe allegation of sale by plaintiffs’ predecessor to the defendants’predecessor under Ex.B1. The burden, undoubtedly, is on the personalleging i.e. the defendants. It may be that the said Ex.B1 is validated under the Record of Rights Act, but all these are matters for the defendants toestablish and I see no reason, whatsoever, as to why an additional issuecannot be framed when that is the area of substantial contest between theparties.

12. Even assuming that neither of the parties have asked for framing ofsuch an issue, under Rule 5 of Order XIV CPC, extracted above, it is openfor the trial Court to either frame an additional issue or amend an existingissue or strike off an unnecessary existing issue any time before passing thedecree. It has to be remembered that framing of an issue is only for thepurpose of enabling the parties and the Court to focus their attention on thematerial propositions on law and fact, which needs to be addressed.

13. I am, therefore, of the opinion that the impugned order is liable to be setaside and the revision petition deserves to be allowed. Consequently, thetrial Court shall frame the following issue as an additional issue and proceedfurther with the trial of the suit.

“Whether the defendants are absolute owners and lawful possessorsof the suit schedule property by virtue of Ex.B1 dated 26.08.1957?”

The civil revision petition is allowed accordingly. There shall be noorder as to costs.

December , 2010DSK

_______________________

VILAS V. AFZULPURKAR, J

[1]1995 (3) ALT 372