R.S.A.No. 3397 of 2007(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3397 of 2007(O&M) Date of decision: 29.4.2011 Niranjan Singh and others ......Appellants Versus Narender Mohan and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sunil Panwar, Advocate, for the appellants. Mr. Ajay Jain, Advocate for respondents No.1,2,5 and 6. **** SABINA, J. Plaintiffs had filed a suit for declaration challenging judgment and decree dated 20.8.1996 passed in civil suit No.440 of 25.7.1996. The case of the plaintiffs, in brief, was that the plaintiffs and proforma defendants were owners in possession of the suit property as the same was their ancestral and coparcenary property. The impugned judgment and decree were a result of fraud and misrepresentation and were not binding on the rights of the plaintiffs R.S.A.No. 3397 of 2007(O&M) 2 and proforma defendants. Defendants No.1 to 3, in their written statement, averred that the plaintiffs and proforma defendants had no concern with the suit property. The impugned judgment and decree were legal and valid. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs as well as proforma defendants are owner in possession of land measuring 26 kanals 9 marlas comprising in khewat No.401 khatoni No.538 and are owner in possession of land measuring 11 kanals 14 marlas comprising in khewat No. 403 khatoni No.561 jamabandi for the year 1995-96 situated in the village Jhagroli, Tehsil and District Mohindergarh? OPP. 2. Whether the judgment and decree dated 20.8.1996 is wrong against law and facts and have no effect on the right of the plaintiffs as well as proforma defendant ? OPP 2-A If issue Nos. 1 and 2 is proved whether the plaintiff is entitled to possession as prayed for ? OPP 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4.Whether the suit is time barred ? OPD 5. Whether the suit is bad for want of non joinder and mis-joinder of necessary party ? OPD 6. Whether the suit is bad for want of court fee ? OPD 7. Whether the defendant is not entitled to special cost R.S.A.No. 3397 of 2007(O&M) 3 under Section 35-A CPC ? OPD 8. Relief.” The Civil Judge (Jr.Divn.) partly decreed the suit of the plaintiffs vide judgment and decree dated 12.10.2006 and held that the plaintiffs and proforma defendants were owner of the suit property and the contesting defendants were in possession of the suit property. The impugned judgment and decree were not binding on the rights of the plaintiffs and proforma defendants. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal. The District Judge vide judgment and decree dated 17.3.2007 accepted the appeal and also passed decree for possession in favour of the plaintiffs and proforma defendants. Hence, the present appeal by the contesting defendants. Learned counsel for the appellants has submitted that vide order dated 15.6.2005, trial Court had framed issue No.2-A. However, the trial Court had failed to decide the said issue. The trial Court was required to decide all the issues. Learned counsel has further submitted that the matter was liable to be remanded back to the trial Court for a fresh decision after deciding all the issues framed before it. In support of his arguments, learned counsel has placed reliance on Ram Dass and others vs. Piara Singh and others 1991 PLJ 597, wherein it was held as under:- “It is for this precise reason that the recording of findings on all the issues has been commended from time to time. In the present case this Court is confronted with the situation where findings of the first appellate Court deserve to be set aside and as a necessary corollary, R.S.A.No. 3397 of 2007(O&M) 4 therefore, it becomes necessary to give findings on the other issues although not commented and decided by the first appellate Court. Had the matter not been pending for a long time in this Court, the only course, perhaps, would have been to remand the case to the first appellate Court by simply setting aside the findings recorded by the said Court on the question of limitation. However, such a course did not commend to me and is rightly suggested by the learned counsel for the parties not to be followed at his late stage. In the circumstances, I will take up the other issues for determination even though the same have not been decided by the first appellate Court. However, before that is done, it shall be first necessary to deal with the question of limitation and set aside the findings on the said issue recorded by the first appellate court.” Learned counsel has further submitted that the appellants were in possession of the suit land as gair Morussi. The said fact was evident from the revenue record on the file. Learned counsel for the respondents, on the other hand, has submitted that although the additional issue 2-A had not been specifically decided by the trial Court but no such objection was taken by the appellants before the first Appellate Court and hence, they had waived the said objection. Moreover, the fact that whether the plaintiffs were entitled for a decree of possession or not has been duly decided by the Courts below. After hearing learned counsel for the parties, I am of the R.S.A.No. 3397 of 2007(O&M) 5 opinion that the present appeal is devoid of any merit and deserves dismissal. First of all, let us deal with the argument raised by learned counsel for the appellants qua the effect of non decision of additional issue 2-A. Order 14 Rule 2 of the Code of Civil Procedure reads as under:- “Court to pronounce judgment on all issues:- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub rule (2), pronounce judgment on all issues. (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 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, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” Thus, as per the above provision, the trial Court is required to pronounce judgment on all the issues. Issue No.2-A was framed by the trial Court on 15.6.2005. The said issue is to the effect that in case issues No.1 and 2 are proved then whether the plaintiff is R.S.A.No. 3397 of 2007(O&M) 6 entitled to claim the relief of possession as prayed for. Although the said issue 2-A was not specifically taken up by the trial Court for disposal but while deciding issues No.1 and 2, the trial Court has come to a categoric finding that the contesting defendants were in possession of the suit property. The relief of possession was not granted to the plaintiffs by the trial Court. The first Appellate Court came to the conclusion that the present appellants had failed to establish that they were entitled to retain the possession particularly when ownership of the plaintiffs had been established. The point as to whether the plaintiffs were entitled to claim possession was duly dealt with by the learned first Appellate Court. The appellants did not raise the plea before the first Appellate Court to the effect that issue No.2-A had not been decided by the trial Court and the case be remanded back to the trial Court for a fresh decision. Apparently, the said plea had been waived by the appellants before the first Appellate Court. Although the trial Court was required to decide all the issues specifically but in facts and circumstances of the present case, it would not be just and expedient to remand the case merely on the ground that issue No.2- A has not been specifically decided by the trial Court as the said issue had been dealt with by the trial Court while deciding issues No.1 and 2 and the first Appellate Court has also dealt with issue No.2-A while holding that the plaintiffs were entitled to claim possession of the suit property. The judgment relied upon by learned counsel for the appellants fails to advance the case of the appellants as it is based on different facts. In the facts and circumstances of the present case, the fact that issue No.2-A was not specifically R.S.A.No. 3397 of 2007(O&M) 7 taken up for decision by the trial Court has not caused any prejudice to the parties. The parties knew their case and had led their evidence accordingly. The Courts below have given the findings on the evidence led by the parties. On merits, the case of the plaintiffs was that they were owners of the suit property and were entitled to retain the possession of the suit property. As per the jamabandis Ex.P-1 for the year 1990- 91, Ex.P-2 for the year 2000-01, the plaintiffs were described to be co-owners in the suit property and the defendants are described to be in possession of the suit property. The plaintiffs had sought eviction of the defendants by filing a petition before the Assistant Collector, Ist Grade, Mohindergarh but the said petition was not decided on merits and it was observed that the matter was liable to be disposed of by the Civil Court vide order dated 10.9.1987. Since, the plaintiffs were owners of the suit property, they were entitled to retain the possession of the same. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 29, 2011 anita