IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1418 OF 2010 BETWEEN Smt. Pratapa Radhamma and three others. …PETITIONERS AND Pratapa Komuraiah and others. …RESPONDENTS Counsel for the petitioners: MR. S. SURYA PRAKASA RAO Counsel for the Respondents: MR. B. NARASIMHA SARMA The Court made the following: - ORDER: This is a revision petition filed by the plaintiffs against the orders of the trial Court in I.A.No.557 of 2008 in O.S.No.25 of 1996 dated 09.03.2010 refusing to frame proposed additional issue as sought for by the petitioners. 2. The facts, in brief, are as follows: (a) The plaintiffs/petitioners herein filed a suit for declaration of title and possession by alleging that they are the absolute owners of suit schedule land admeasuring Ac.1.32 guntas in Sy.No.131/B at Huzurabad. The plaintiffs claim that prior to them – the husband of the first plaintiff and the father of the plaintiffs 2 to 4 – was the original owner and the plaintiffs succeeded to the property after his death. It is alleged that the suit land was leased out to the defendants on ½ crop share basis and that on their failing to give the share in crops after April 1995 and on their denial of title of the plaintiffs and refusal to vacate the land, the plaintiffs filed the present suit for declaration and possession. (b) Defendants filed written statement, inter alia, denying plaintiffs’ title and also claimed that the husband of the first plaintiff and father of plaintiffs 2 to 4 had sold the suit property to them under a document dated 26.08.1957 and received entire sale consideration and as such, claimed title and possession as owners over the suit land. In the alternative, they also claimed adverse possession from 26.08.1957. (c) With reference to the said averment in the written statement the plaintiffs filed additional pleadings objecting to the said document dated 26.08.1957 as inadmissible being unstamped and unregistered. Defendants again filed additional written statement alleging that the said sale deed has been duly validated under the Record of Rights Act and that appropriate mutation has also been done. 3. It is alleged by the petitioners that they had sought framing on an appropriate issue relating to the said document relied upon by the defendants and gave draft issues also to the Court. But, however, the issues that are framed in the suit in June 2000 are as follows: 1. Whether the plaintiffs are entitled for the declaration of their title to the suit land? 2. Whether the plaintiffs are entitled for the possession of the suit land? 3. Whether the plaintiffs are entitled to mesne profits? 4. To what relief? 4. It appears that the trial in the suit has opened and plaintiffs have examined their witnesses and the suit is now coming up at the stage of cross-examination of D.W.3. At this stage, the petitioners filed the present application being I.A.No.557 of 2008 seeking framing of additional issue, as follows: “Whether the husband of the plaintiff No.1 and father of plaintiffs 2 to 4 sold the suit land to the father of defendants No.1 to 3 and executed the sale deed dated 26.08.1957 in their favour, as alleged in para No.1 of the written statement? If so, whether the same is valid and admissible in evidence?” 5. The said application was contested by the respondents/defendants by alleging that similar application of the plaintiffs filed earlier was rejected by the trial Court vide orders dated 02.07.2003 and as such, the earlier rejection amounts to res judicata. Under the impugned order, the Court below observed that every denial in the written statement need not give rise to framing of issue and that even in the absence of pleading and an issue, findings may be recorded when parties choose to adduce evidence on any particular matter. To the extent of admissibility of said document marked as Ex.B1, is concerned, the matter ultimately came to be decided by this Court in CRP.No.4681 of 2003 dated 08.03.2006 and to that extent the proposed additional issue does not survive. 6. Mr. S. Surya Prakasa Rao, learned counsel for the petitioners/plaintiffs, has contended that the impugned order of the Court below, if allowed to stand, would defeat the very purpose of Order XIV Rule 1 of the Code of Civil Procedure, 1908 inasmuch as the material proposition on facts and on law as affirmed by the parties must form basis of and be framed as issues. He submits that so far as interlocutory matters are concerned, there is nothing like res judicata between the parties and there is no impediment for framing additional issue even if the memo to that effect filed by the plaintiffs was earlier rejected by the Court below. 7. Mr. B. Narasimha Sarma, learned counsel for the respondents/defendants, on the contrary, placed strong reliance upon decision of this Court in NARSINGH SINGH v. SMT. URMILA BAI[1] and submits that in a suit for possession by the landlord the issue relating to defendants’ title is totally unwarranted. 8. The point, therefore, that falls for consideration is whether it is necessary for the Court below to have framed additional issue to the extent of material proposition on fact pleaded by the defendants viz. that the predecessor of the plaintiffs sold the suit schedule property to the father of the defendants under Ex.B1 dated 26.08.1957. 9. Order XIV CPC deals with settlement of issues and determination of suit on such issues. For the purpose of the present case, it would be appropriate to extract relevant part of Order XIV Rule 1 CPC: ORDER XIV SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON 1. Framing of issues.- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) … (3) Each material proposition affirmed by one party and denied by other shall form the subject of a distinct issue. (4) … (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under Rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Order XIV Rules 3 and 5 also are relevant, which are as follows: 3. Materials from which issues may be framed. – The Court may frame the issues from all or any of the following material: - (a) allegations made on oath by the parties, or by any persons on their behalf, or made by the pleaders of such parties, (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party. 4. … 5. Power to amend and strike out issues.- 1. The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. 2. The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. 10. A look at the above provisions would show that material proposition of fact, which is under contest between the parties, is with respect to alleged sale of the suit schedule property by the predecessor of the plaintiffs to the predecessor of the defendants under Ex.B1. Ex.B1 being allowed and marked in evidence on the basis of prima facie satisfaction that though unregistered, it is admissible in evidence under proviso to Section 49 of the Registration Act and further detailed aspects concerning Ex.B1 viz. it’s genuineness and validity are matters at large at the hearing of the suit itself, as held by this Court in CRP.No.4681 of 2003 dated 08.03.2006, referred to above. The existence of said contentious issues between the parties is, therefore, evidenced from the respective pleadings and I am unable to appreciate resistance of the Court below or for that matter opposition by the respondents/defendants to frame additional issue in that aspect. 11. In a suit for declaration and possession, as prayed by the petitioners/plaintiffs, the previous ownership of the predecessor of the petitioners/plaintiffs is not in dispute and unless the defendants succeed in establishing that transaction of sale in favour of their predecessor, as alleged by them, the issues 1 and 2, as originally framed by the Court below, are in all probabilities likely to be answered in favour of the petitioners/plaintiffs. The only defence, which is material on the facts and circumstances, therefore, is the allegation of sale by plaintiffs’ predecessor to the defendants’ predecessor under Ex.B1. The burden, undoubtedly, is on the person alleging i.e. the defendants. It may be that the said Ex.B1 is validated under the Record of Rights Act, but all these are matters for the defendants to establish and I see no reason, whatsoever, as to why an additional issue cannot be framed when that is the area of substantial contest between the parties. 12. Even assuming that neither of the parties have asked for framing of such an issue, under Rule 5 of Order XIV CPC, extracted above, it is open for the trial Court to either frame an additional issue or amend an existing issue or strike off an unnecessary existing issue any time before passing the decree. It has to be remembered that framing of an issue is only for the purpose of enabling the parties and the Court to focus their attention on the material propositions on law and fact, which needs to be addressed. 13. I am, therefore, of the opinion that the impugned order is liable to be set aside and the revision petition deserves to be allowed. Consequently, the trial Court shall frame the following issue as an additional issue and proceed further with the trial of the suit. “Whether the defendants are absolute owners and lawful possessors of the suit schedule property by virtue of Ex.B1 dated 26.08.1957?” The civil revision petition is allowed accordingly. There shall be no order as to costs. _______________________ VILAS V. AFZULPURKAR, J December , 2010 DSK [1] 1995 (3) ALT 372