Usha Chhapriya vs Mahesh Prasad @ Mahesh Kumar

K.K. Trivedi, J.—Heard on the question of admission. By this petition under Article 227 of the Constitution of India, the petitioners have called in question the order dated 1.8.2013, passed in Civil Suit No. 127-A/2010, by I Civil Judge Class-II, Khurai. The petitioners, the defendants in the suit filed an application under Order 14 Rule 5 read with Section 151 of the CPC (hereinafter referred to as the CPC for brevity) for framing of certain additional issues and trying the same as preliminary issues. Such an application was opposed by the respondent/plaintiff and by the impugned order, the trial Court has rejected the application of petitioners, therefore, this writ petition is filed.

The respondent/plaintiff filed a suit for permanent injunction claiming that the respondent/plaintiff is the owner in possession of land bearing Survey No. 609/1, Area 1.802 hectare. A sale deed was executed by the respondent/plaintiff in favour for the petitioner No. 1 transferring 0.14 hectare land. It is alleged that stating that the land of the petitioners would be measured leaving 70 feet area from the centre of the road, they made an encroachment over the part of the land of the respondent/plaintiff and, therefore, suit for injunction was required to be filed. Such a suit was contested on various grounds by the petitioners stating that the land was purchased for the purposes of establishing a retail outlet allotted by Hindustan Petroleum Corporation Limited (hereinafter referred to as the Corporation for short). The land purchased by the petitioner has already been diverted. In case any injunction is required to be obtained, the Corporation was a necessary party. The value of the land in dispute is more than 20 lacs and the suit is to be valued accordingly. It was contended that such a suit was not maintainable only for grant of permanent injunction.

The trial Court framed the issues on the basis of the pleadings of the parties and thereafter an application as stated herein above was made by the petitioners for framing of additional issues. The trial Court after due consideration, reached to the conclusion that since it is only a defence raised in the written statement by the petitioner, which fact is to be adjudicated in the trial, therefore, the application was rejected.

It is, vehemently, contended by learned counsel for the petitioners that if the pleadings are raised in such manner by the petitioners in the written statement, it was necessary on the part of the trial Court to frame the issues. The defence if proved, will oust the jurisdiction of the Court and the suit itself would be liable to be dismissed for non-joinder of necessary parties. Thus, it is contended that the application of the petitioners has wrongly been rejected and, therefore, the order impugned is liable to be set aside.

It was not necessary for the Court to frame any issue on the pleadings so raised by the petitioners in their defence. It is not in dispute that in case the land was taken or purchased for the purposes of establishing a retail outlet by the Corporation, the land would not vest in the Corporation nor would be managed by it. By virtue of the sale deed, it is the exclusive property of the petitioners, therefore, without adducing evidence, it cannot be said that the land was in fact purchased for and on behalf of the said Corporation. Secondly, the sale deed itself indicates the total value of the land purchased by the petitioner at Rs. 8,25,000/-. Whatever the part of land illegally occupied by the petitioners, the valuation of the same is to be done only if possession is required to be claimed by the respondent/plaintiff. Therefore, such a plea raised in written statement was also not to be adjudicated as a preliminary issue and, therefore, framing of issue was not necessary. The petitioners would be free to adduce evidence in proof of their defence and in case any such fact is found proved, the trial Court would be required to adjudicate on the same irrespective of the fact whether the issue is framed in this respect or not, as the defence has to be adjudicated. Even otherwise, the issues which are framed by the trial Court will be decided only after taking into consideration the defence raised by the petitioners and not otherwise and, therefore, if an application filed for framing of additional issues is rejected, no wrong is committed by the Court below. No error of jurisdiction is committed by the trial Court. The writ petition fails and is hereby dismissed without notice to the other side.