Phonu alias Nizamuddin vs Nankulli and Others

S.K. Phaujdar, J.—This second appeal is directed against the judgment and decree in Civil Appeal No. 55 of 1980 dated 24.3.1993, whereby (he decree of the trial Court in Original Suit No. 344 of 1979 was confirmed.

The suit in question was brought by Savitri and Nankulli against Bhanu and three others for a direction upon the Defendants forbidding them from disturbing the possession of the Plaintiffs on the suit property. It was stated that Savitri was a daughter of Munai (Defendant No. 2) and Nankulli was her husband. Savitri and Nankulli were married more than twenty years prior to the institution of the suit. They had no house to live in. A vacant land of Maheshwar Gir was lying close to the house of Munal and the daughter made a prayer to the father that arrangement be made for settlement of that plot in her favour so that a house be made thereon and her husband might build their residential house thereon. Accordingly, Defendant No. 2 arranged for settlement of a land measuring 45 feet x20 feet in favour of Savitri and Nankulli from the owner Maheshwar Glr and they were put in possession. The Plaintiffs constructed a room thereon and used the rest of the land as angan and started living there about 20 years prior to the institution of the suit. Unfortunately, since sometime past Munai. Rajaram, Satya Narain and the Plaintiffs hid a bad blood between them and Munai and others wanted to dispossess the Plaintiffs from the suit property. When they failed in that attempt a forged and fake sale-deed was made in favour of the Defendant No. 1 so that Bhonu may be able to take forcible possession of the suit property. With this end in view Defendant Nos. 1 and 2 entered into a conspiracy and made a prayer before the police on 15.10.1979 and the Plaintiffs were afraid that they may be thrown out with police help. This led to the filing of the suit.

Two sets of defence came forward, one from Bhonu and the other from the rest of the Defendants. All of them denied the averments of the Plaintiff. It was stated that Nankulli was from another village and he used to live in his ancestral village only and has no concern with the suit property. The Plaintiffs were never in possession thereof. It was stated that the suit property was part of the house of the Defendant No. 2, wherein the family was living for about 100 years, since the time of the ancestors. To the west of this house Maheshwar Gir had no vacant land nor was any such vacant land settled by Maheshwar Gir in favour of the Plaintiffs. The sale to Bhonu was made to the knowledge of the Plaintiffs and it was a sale for a good consideration and possession was made over after the sale to Bhonu. The Plaintiffs had no right, title and interest over the suit property and had no right to sue. They are not in possession there of and the suit was bad u/s 34 of the Specific Relief Act.

Upon such pleadings the trial Court had framed several issues including one touching the ownership of the house. He also framed an Issue on the question of the suit was barred u/s 34 of the Specific Reliefs Act. The trial Court came to a conclusion that the Plaintiffs were not only the owners of the suit property but were in possession also and it was further held that the Plaintiffs having been in possession of the suit property and there having been an apprehension of breach of peace the suit was maintainable u/s 34 of the Specific Reliefs Act. The suit was accordingly decreed for an injunction directing the Defendants not to interfere in the possession of the Plaintiffs and not to oust them from the suit property. The Commissioner''s map was made a part of the decree.

This order was challenged in the first appeal by Bhonu. During the pendency of the first appeal, the plaint was allowed to amend on the ground that after the decree by the Courts below, the Defendants had dispossessed the Plaintiffs on 2.3.1980 and as such a prayer was added for getting back possession. The appellate Court framed three additional issues as follows:

(1) Whether the Defendants had taken illegal occupation of the suit property on 2.3.1980 and if so whether the Plaintiffs were entitled to get back possession.

(2) Whether the Defendants had closed the northern door of the house in suit.

(3) Whether the suit has been undervalued and whether an improper Court fee was paid.

The first appellate Court accepted further oral evidence before itself on the added issues and decided the appeal and confirmed the findings of the trial Court and gives a decree for possession directing Bhonu to deliver possession to Nankulli (Savitri died by this time) within three months. He was also directed to open the northern door during tills period.

In the second appeal the Respondent Nankulli appeared as a caveator. Both the sides were heard. The points raised in the appeal were that the Courts had failed to consider important documentary and oral evidence and also important points of law that the suit was barred by the principle of estoppel and acquiescence. It was further urged that the Courts below had wrongly approached the dispute between the parties and had decreed the suit on the Defendant''s failure rather than on success of the Plaintiff''s case. It was further urged that the appellate Court should not have allowed amendment of the plain to change the nature of the suit and he should not have taken up the task of deciding the issues himself and should have referred in back to The Court below.

Most of the arguments of the learned Counsels contered around the question of the true import of. Order XLI Rule 25 of the Code of Civil Procedure. This rule provides the procedure whether the appellate Court may frame issues and refer them for trial to Court whose decree was appealed from. It states that where the Court from whose decree the appeal is preferred has omitted to frame of to try any issue or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon merit, the appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred and in such case, shall direct such Court to take the additional evidence required. Power of remand by the appellate Court is there in Rules 23 and 23A and the aforesaid Rule 25. Under Rule 23, remand is permitted when a suit is disposed of by the trial Court on a preliminary point and the decree is reversed in appeal. Rule 23 contemplates of remand in other cases where the trial Court had disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and a re-trial Is considered necessary. Rule 24, however, says that if evidence on record Is sufficient to enable the appellate Court to pronounce the judgment, the appellate Court could resettle the issue and finally determine the suit. Order XLI, Rule 27 forbids acceptance of additional evidence in the appellate Court except under the conditions stated therein. Change of the situation requiring amendment of the plaint and that in its turn requiring additional evidence, is not a situation contemplated under Order XLI, Rule 27. The dispute, therefore, converges to a question: is after allowing amendment of the pleading due to change in the situation in the suit property and after framing additional Issues, the appellate Court should have taken the task of accepting evidence itself or should have referred It to the trial Court for evidence.

In this connection, reference was made to a decision, of the Allahabad High Court in AIR 1985 All 313. This was a second appeal arising out of a suit for possession and the issues involving question of fact required reconsideration and fresh finding with reference to all relevant materials on record. The case was remanded back for hearing by the trial Court. Reliance was further placed on another decision of the Allahabad High Court in 1966 AWR 330. It was held herein that an order of remand should not be passed where the appeal could be disposed of under Rule 24 of Order XLI read with Rules 25 and 26. In a decision the Patna High Court was of the view that if evidence on record was sufficient, the appellate Court had to pronounce judgment on the basis thereof and a remand order would be illegal AIR 1980 Pat 111. The Punjab and Haryana High Court was of the view AIR 1990 P and H 93, that even after amendment of the written statement, the appellate Court should have directed the Defendant to lead evidence before it and disposed of the appeal on merit. It was argued by the Respondent that this was precisely what was done by the first appellate Court after allowing the amendment.

In the case at our hands, there has been a suit in which the trial Court had not framed any issue concerning possession. Issue No. 1 simply touched the question of ownership but he had, at the concluding lines of his discussion on this issue, held that the Plaintiffs were not only the owners thereof but were in possession as well. The parties had led evidence on the question of possession and mere non-framing of the issue at the trial stage touching the question of possession did not in fact prejudice any one of them as they knew fully well that the Court was also hearing them on the question of possession and would give a finding on that question. The first appellate Court accepted the plea of amendment of the plaint during the pendency of the appeal on the ground that after the decree, the Plaintiffs were dispossessed and accordingly, It had framed three additional issues with the questions (i) if the Defendants had forcibly occupied the suit house from 2.3.1980 and, if so, were the Plaintiffs entitled to a decree for possession, (ii) if the Defendants had closed the northern door of the house and (iii) if the suit was undervalued and deficient Court-fee was paid. In the appeal, challenge was made to the findings of the Courts below including the one concerning possession.

In deciding the first of the three issues framed by him, if the Defendants had forcibly dispossessed the Plaintiff from 2.3.1980, the first appellate Court was required first to confirm that till that date the Plaintiffs were in possession. In other words, he was required to confirm the finding on possession as given by the trial Court and only then, to decide the new issues. The appellate Judge was also conscious of this situation as he had observed that he was to sue if the Plaintiffs were in possession of the suit property prior to the decision of the Munsif. He discussed the evidence and concluded that on the basis of Exits. 1 and 2. When ownership of the Plaintiffs was established, the report of the Commissioner cannot be used to undo its effect. Although he proposed to decide the question if the Plaintiffs were really in possession of the suit property before the decision of the Munsif, the appellate Court In the concluding paragraph of his judgment lost sight of this aspect and only concluded that the Defendants had forcibly occupied the suit property on 2.3.1980. It is also worth to note that on issue No. 1, as framed by the trial Court, the appeal Court held that the finding was correct although, according to the appellate Court, the Munsif had not discussed fully the evidence of the parties.

Thus, the appellate Court failed to confirm the findings on possession as done by the trial Court under issue No. 1 and had decided the first issue newly framed by him without confirmation on of original issue No. 1.

In this context, it may not be out of place to mention that the framing of new issues was prompted due to amendment of the pleading. While amendment was a right of the Plaintiffs due to change in the circumstance and if it had been rightly allowed by the first appellate Court, we are back to the question if he should have accepted evidence himself or should have referred the same for trial to the Court below. The decision of the Punjab and Haryana High Court Darshan Lal and others Vs. Comrade Daya Singh and others, was also a case where the written statement was allowed to be amended and the Court had set aside the judgment and decree and remitted the case for retrial. This action was held illegal by the High Court. The High Court held, in paragraph 3 of the judgment, that setting aside the whole judgment was not called for and only the fresh issue could have been referred to the trial Court for its decision thereon.

It is the well-known principle of law that in a suit as well as in the first appeal, all disputed facts are open for decision. A point of fact is not to be decided in second appeal where only a substantial question of law is to be looked into. Thus the first appellate Court Is the last Court of facts. By accepting evidence on the additional issues itself, the first appellate Court had shut out a chance of appeal on a question of fact to the aggrieved party. The provisions of Order XLI, Rule 25 is to be seen from this angle. Under this rule, if it appears to the appellate Court that any fact essential for the right decision of the suit was to be determined, it could frame an issue on the point and refer the same for trial to the Court from whose decree the appeal is preferred and in such case, shall direct such Court to take the additional evidence required. The word "may" used in this rule, under the requirement of judicial propriety, attains the rigour of "shall" so that the aggrieved party may have two Courts of facts. It was not necessary even under this rule to remand the whole case after setting aside the judgment. The appellate Court, as stated above, had framed three additional issues. He was required to find if the suit was undervalued and if proper Court-fee was paid. Unfortunately, it was simply stated that these two issues were not pressed and the question of Court-fee was already decided by the order dated 21.10.1983. The learned appellate Court failed to consider that the suit was originally are for injunction but after the change in the situation and after the amendment of the pleading, it became one for recovery of possession. When he framed question No. 12, he must have had in his mind a consciousness about this situation, otherwise there was no necessity of framing an additional issue on valuation and Court-fee as such issues were already there. Bui he did not apply his judicial mind to this question and had simply banked upon the decision dated 23.10.1983 which was a question on Court-fee solely for the prayer of injunction and not for possession.

Under these circumstances, the appellate judgment cannot be upheld. There should be a remand of the case so that the first additional issue touching the allegation of dispossession on 2.3.1980 is referred to the trial Court for a decision thereon after affording opportunity to the parties to lead evidence on that point. Once that issue is answered by the trial Court, the aggrieved party may be allowed an opportunity to file appeal, cross-appeal, cross objection, as the case may be, and only then the first appeal should be decided touching all the issues including the issue on Court-fee, on the question of recovery of possession.

The present appeal accordingly, stands allowed. The appellate judgment and decree stand set aside. The First Appeal No. 55 of 1980 is remanded back to the first appellate Court with a direction that he would refer the first additional issue framed by him to the trial Court for decision within two months of such reference after affording opportunity to the parties to lead evidence. The first appellate Court shall, after receiving the answer of the trial Court on that issue, allow opportunity to the aggrieved party to file appeal, cross-appeal or cross-objection against the decision and only thereafter the first appellate Court shall decide the appeal on all the issues including the ones framed by him. The parties are directed to appear before the first appellate Court on 7.10.1996 to receive further directions from him. Let a copy of this judgment be sent to the lower appellate Court along with, lower Court records immediately.