Kanchan Ranolia and Others vs Vivek Kumar and Others

Gurmeet Singh Sandhawalia, J.

C.M. No. 25094-CII of 2014

Application for placing on record Annexures P-16 to P-21, the pleadings of the parties is allowed, subject to all just exceptions. The said Annexures are taken on record.

C.R. No. 7471 of 2014

Challenge in the present revision petition filed by the plaintiffs/petitioners under Article 227 of the Constitution of India is to the order dated 02.09.2014 (Annexure P-14) passed by Civil Judge (Jr. Divn.), Hansi, whereby the plaintiffs-petitioners sought the framing of the below mentioned issue and treating the same as a preliminary issue. The said issue in question reads thus:--

"Whether defendants No. 3 to 5 have purchased the house in dispute as detailed and described in the head note of the plaint alongwith the adjoining house vide sale deed bearing Vasika No. 5229 dated 30.3.2010 from the defendant No. 1 as claimed by defendant No. 3 to 5"? OPD."

The reasoning given by the trial Court is that under Order 14 Rule 2 CPC, where the jurisdiction of the Court is barred or there is a bar to the suit created by any law, the issue can be treated as a preliminary one. The question of ownership of the house which is in dispute could only be treated after the evidence had come on record and accordingly, reliance upon the observations made in C.R. No. 313 of 2014 decided on 16.01.2014 (Annexure P-12) passed by this Court were held not to be applicable as such since counsel for the petitioner had withdrawn the said revision petition.

The suit filed by the present petitioners pertain to declaration that they are owners of 4/5th share of the portion of the house shown in red colour in the attached site plan marked with letters ABCD bearing House Tax Unit No. 406B C/5 situated at Lal Sarak, near Rampura, School Hansi and the boundaries are given in the heading of the plaint (Annexure P-16), which are as under:--

"East: Street.

West: House of Keshav Kumar.

North : House of Rajinder Saini and ors.

South : House of Manju Rani."

Challenge has also been made to a decree dated 08.06.1996 (Annexure P-4) passed by the Court of Sh. S.K. Kaushik, the then Additional Civil Judge (Sr. Divn.), Hansi in Civil Suit No. 479 of 1996 of 24.05.1996 and it is held out that it is a result of fraud and misrepresentation. The plaintiff No. 1 is the wife of Rajender Kumar whereas plaintiff Nos. 2 to 4 are the children who were claiming the right on the property in dispute. It is alleged that defendant No. 1-Indu sold portion shown in CDEF to Vivek Kumar, Jaswant Singh and Inder Kumar vide sale deed dated 30.03.2010. The mother of Rajender Kumar is alleged to have become owner of 1/4th share of the house on account of the death of her son and she is alleged to have challenged the sale deed dated 30.03.2010 to the extent of 1/4th share being in possession of the entire house. It is alleged that the plaintiff had appeared as witness in the said suit and during that she came to know that defendant No. 1 had procured a judgment and decree on 08.06.1996 whereby, she was declared owner of the house by way of alleged family settlement with Rajender Kumar. It is also pertinent to mention that the specific case of the plaintiff is that after the death of Rajender Kumar on 04.12.1996, she had left the matrimonial house and was staying with her bhabhi at Abohar. Resultantly, the decree is challenged on account of not being registered and she having no pre-existing right etc.

The respondents No. 1 to 3 herein had filed an application for being impleaded under Order 1 Rule 10 CPC on the strength of the sale deed dated 30.03.2010, which was allowed on 20.09.2011 by the Trial Court. The said order was subject matter of C.R. No. 7262 of 2011 on the ground that the sale deed did not pertain to the property in question by the petitioners. The said order was set aside on 20.11.2012 (Annexure P-10) and the trial Court was directed to pass a fresh order. The application was again allowed on 28.10.2013 (Annexure P-11) by holding that no written statement had been filed on behalf of the vendors and the vendors were the best persons to disclose how much area was sold and the applicants would be directly affected by the fate of the suit and their impleadment would not lead to further multiplicity of litigation. The relevant part of the order reads as under:--

"In the case in hand, the plaintiffs have challenged the civil court decree dated 08.06.1996 passed in civil suit No. 479 of 24.05.1996 by the court of Sh. S.K. Kaushik, the then Addl. Civil Judge (Sr. Divn.), Hansi, in respect of house having house tax unit No. 406-B C/5 shown with letters ABCD. On the other hand, the applicants have also placed on record copy of sale deed No. S229 where by Smt. Indu, Ankur and Palak have sold the property bearing house tax unit No. 406BC/5 total measuring 227 Sq. yards to the applicants for a sum of Rs. 4,50,000/-. The counsel for plaintiff has submitted that as per recital of the sale deed, the applicants have purchased only that portion of the house, which was inherited by Smt. Indu and her children after the death of Keshav, the husband of Smt. Indu and father of Ankur and Palak and the suit property in respect of which decree was allegedly suffered, was never purchased by the applicants by way of impugned sale deed and thus, applicants have no concern whatsoever with the suit property. It is correct that as per recital of sale-deed No. 2559, the applicants have purchased the share of Keshav which was inherited by Smt. Indu, Palak and Ankur after his death, however, at the same time, it has also been mentioned in the sale deed that total area of 227 Sq. yards is being purchased by the applicants by way of impugned sale deed, which includes the disputed portion marked with letters ABCD and no written statement has been filed on behalf of vendors till date and it is the vendor, who is the best person to disclose the fact as to how much area was sold by him or her and thus the applicants would be directly affected by the fate of the present case and their not impleadment would lead to further multiplicity of the suit. Thus, the applicants are proper and necessary party to the present suit and as such, application stands allowed. Perusal of case file reveals that amended titled and written statement on behalf of defendant No. 2, have already been placed on record. Now to come upon 09.12.2013 for filing of written statements by defendants No. 1, 3 to 5."

The said order was again challenged by the present petitioners by filing C.R. No. 313 of 2014. The said Civil Revision was withdrawn on 16.01.2014 at the initial stage itself which would be clear from the order which reads thus:--

"At the very outset, learned counsel for the petitioners intends to withdraw the instant petition to enable the petitioner to move an application before the trial Court to treat the preliminary issue, as to whether the property in dispute is subject matter of impugned collusive decree as claimed by the plaintiffs or the sale deed as urged by the defendants.

Dismissed as withdrawn with the aforesaid liberty, as prayed for."

On the strength of the said order, the application was filed for framing an issue with regard to the ownership of the home in dispute and for treating the same as a preliminary issue on 30.07.2014 after the pleadings had been completed. The application was contested by the subsequent purchasers on the ground that the proposed issue is to be treated as a preliminary issue and cannot be decided without leading of evidence and is not a legal issue. The plea taken was that the sale deed pertained to the house in dispute but also the adjoining house sold by defendant No. 1, Smt. Indu. Resultantly, the impugned order has been passed on 02.09.2014. In the meantime, on the basis of the pleadings, the trial Court framed the main set of issues on 26.09.2014 which read thus;-

"1. Whether plaintiffs are owners of 4/5 share of house in question shown in red colour in the site plan and marked with letter ABCD consisting of two rooms, a store, a kitchen and a bathroom bearing House Tax Unit No. 406B C/5 situated at Lal Sarak, near Rampura, School Hansi? OPP

Whether the Civil Court decree dated 8.06.1996 passed by Sh. S.K. Kaushik, the then ACJ (SD) Hansi in Civil suit No. 479 of 1996 is result of fraud and mis-representation, and is illegal null and void and is liable to be set aside? OPP

Whether the plaintiffs are entitled to decree for permanent injunction? OPP

Whether the plaintiffs have no cause of action to file the present suit? OPD

Whether the suit is not maintainable? OPD

Whether defendants No. 3 to 5 have purchased the house in dispute as detailed and described in the head note of the plaint alongwith the adjoining house vide sale deed bearing Vasika No. 5229 dated 30.03.2010 from the defendant No. 1 as claimed by defendant No. 3 to 5? OPD

Relief."

Counsel for the petitioner has vehemently submitted that the order is not justified and that the Court should have treated issue No. 6 as a preliminary issue and proceeded to decide the same firstly since respondents No. 1 to 3 who have purchased the property vide sale deed dated 30.03.2010 are not necessary party to the dispute inter se the share of the family.

After hearing counsel for the petitioner, this Court is of the opinion that no fault can be found with the order passed by the trial Court. It is apparent from the above facts and circumstances that the petitioners are only making an effort to keep the purchasers out of the litigation. The questions which are arising as to which is the property which is the subject matter of dispute and what is the share is a mixed question of law and fact which will arise out of the evidence of the parties. The sale deed in question talks about a site plan and the boundaries which are as under:--

"East: Common street = 24 ft. 3 inches

West: Sarak Aam Common Road = 23 ft.

North : House of Rajender Saini, wall as per the site-plan,

South : House of Manju Rani."

Thus, it is apparent that what the applicants have purchased seems prima facie part of the same property in dispute and is a larger chunk of a portion of the house. The plea of the purchasers in the reply to the application is also to that effect. Under Order 14 Rule 2 CPC, the Court is under an obligation to decide and pronounce the judgment on all issues and the trial Court is thus, well justified in placing reliance on sub-rule (2) to hold that there is no such bar of jurisdiction which would make it mandatory for the Court to treat issue No. 6 as a preliminary issue and the mixed question of fact and law should be decided together. The Apex Court in Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, has also held to the same effect by placing reliance upon a earlier three-Judge Bench judgment in Major S.S. Khanna Vs. Brig. F.J. Dillon, . Relevant observations read thus:--

"12. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, , and it was held as under:--

"Under O. 14 R. 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit."

Though there has been a slight amendment in the language of Order XIV Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.

Secondly, as per Issues No. 1 to 3, the plaintiffs firstly have to prove their right of ownership to the property in question which already stood alienated by virtue of decree dated 08.06.1996, during the life time of Rajender, their predecessor-in-interest by virtue of a consent decree and the plaintiffs have not been residing at Hansi, in the house in question. The onus of the preliminary issue is on the purchasers/defendants and they cannot be required to prove the said fact at the first instance, in a suit in which they are impleaded as defendants. Accordingly, keeping in view the principles narrated above, this Court is of the opinion that merely because the earlier revision petition was dismissed as withdrawn with liberty to approach the Court to move an application to treat the issue as a preliminary issue would not be as such termed as a direction of this Court which has not been taken into consideration by the trial Court. The trial Court after examination of the issues in question, has come to a valid conclusion which would not warrant interference by this Court and the present revision petition is accordingly dismissed.