Ram Kumar vs Ram Chander and Another

Mahavir S. Chauhan, J.—Civil Suit No. 174 of 1983 was brought by Ram Chander (respondent herein) before Additional Senior Sub Judge, Narnaul (hereinafter referred to as "the trial Court") to seek decree of perpetual injunction to restrain the defendants from interfering in his use and occupation of the ''Gair Mumkin'' ''Chah'' falling in Khewat No. 1 Khatoni No. 5, Square No. 9, Khasra No. 26 and Khewat No. 2 Khatoni No. 12 square No. 20 and Khasra No. 13/1-1, as per jamabandi pertaining to the year 1982-83 of village Bhushan Khurd (hereinafter referred to as "the suit land"). It was stated in the plaint that respondent was co-sharer to the extent of 1/3rd share in suit land alongwith Ram Kumar (the appellant herein) and Hari Singh, and they were using the same since long but the appellant and Hari Singh wanted to stop him from using the ''Chah'' and that to succeed in their endeavour they had also damaged the main switch and the pumping set. Suit was contested by the defendants/appellants on the plea that the ''Chah'' in question was joint Hindu Family Coparcenary property and that they had also installed their own pumping sets thereon since the life time of their fore-fathers and that respondents had neither used the ''Chah'' in question nor had they any right to use the same. Some preliminary objections were raised with respect to cause of action and maintainability of the suit.

Learned trial Court formulated the following issues from the pleadings of the parties:--

Whether the plaintiff is owner in possession to the extent of 1/3rd share in the suit land, if so, to what effect? OPP

Whether the plaintiff has no locus-standi to file the present suit, if so, to what effect? OPD

Whether the suit is not maintainable in the present form, if so, to what effect? OPD

Whether the defendant No. 2 is exclusive owner in possession of the suit land, if so, to what effect? OPD

Whether the defendants are entitled to the special costs, if so, to what amount? OPD

Relief.

After the respondents-plaintiff had concluded their evidence and the matter was fixed for leading evidence by the appellant, the appellant absented from the proceedings and was thus, proceeded against ex parte. The learned trial Court, vide judgment and decree dated 4.6.1987 decreed the suit.

The appellant-Ram Kumar, instead of seeking upsetting of the judgment and decree dated 4.6.1987, elected to challenge the findings recorded by the trial Court by way of Civil Appeal No. 159 dated 21.8.1987. The appeal, after contest, came to be dismissed by the court of learned Additional District Judge, Narnaul (hereinafter referred to as "the First Appellate Court") vide judgment and decree dated 9.12.1987. However, Hari Singh did not file an appeal.

To assail the concurrent findings of facts recorded by the courts below, the defeated defendant(Ram Kumar) has approached this Court by way of the instant Regular Second Appeal, which the respondents are contesting.

Learned counsel appearing on behalf of the appellant has argued that the case put up by the respondents in the plaint was that they had installed the pumping set, in the Chah in question but no evidence was led to substantiate this plea and that the trial Court did not formulate an issue with regard to claim of plaintiff for perpetual prohibitory injunction.

The submission, however, is without substance. No doubt, the respondent No. 1 stated in the plaint that he had installed the pumping set there. The averment so made up was not accepted by the courts below for the reason that no evidence to substantiate this plea could be brought in by the respondent No. 1. It could not be disputed during the course of arguments that the courts are competent to grant a lesser relief than the one claimed by the parties.

As regards non-framing of issue, suffice it to state that issues were framed in the presence of the warring parties and no objection is shown to have been raised in respect of non-framing of a particular issue either at the time of framing of the issues or at any time subsequent thereto.

Be that as it may, it is a settled proposition of law that if evidence available on record is sufficient to dispose of the controversy between the parties and the parties have gone to trial in full awareness of their respective cases and those of their respective adversaries, non-framing or framing of an issue incorrectly pales into insignificance.

Not only this, the appellant in his wisdom, elected not to make an application for rectification/modification of the issues before the learned trial Court nor did he choose to get an additional issue pertaining to perpetual prohibitory injunction formulated before the learned Ist Appellate Court. It is also pointed out that the appellant also did not think it proper to move an application for setting aside of the ex parte judgment and decree passed by the learned trial Court. All these circumstances indicate that the appellant was satisfied about the issues framed by the learned trial Court.

It may also be stated here that in terms of Order 44 Rule 33 of Code of Civil Procedure, the first Appellate Court was empowered to dispose of the appeal in view of the evidence available on record and for doing so, it was not bound by the approach adopted by the trial Court. However, for reasons best known to the appellant, no endeavour was made on his behalf before the learned first Appellate Court to proceed under Order 41 Rule 33 of the CPC and this silence of the appellant is indicative of the fact that he was not satisfied with the plea put up by him in defence and the one put up on behalf of the respondent No. 2 was accepted to be correct. The approach of the appellant in that regard was not without any basis. It has been found by the learned trial court that the respondents have placed on record the entry of the record of rights to show that they are co-sharers in the ''Chah'' and are in possession to the extent of 1/3rd share and the same was noticed by the learned first Appellate Court that a presumption of truth is attached to the entries in record of the rights and the presumption though rebuttable has not been rebutted by the appellant as no evidence to the contrary has been adduced. In view of the situation as discussed above and the fact that no question of law, much less substantial question of law, is shown to be involved in the matter, this court is not inclined to interfere with the concurrent findings of fact recorded by the courts below. The appeal, therefore, fails and is hereby dismissed, leaving the parties to bear their own costs.