IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: S.A.O. 50 of 2005 DATE OF DECISION : July 28,2009 Wahida & another .......Appellants versus Naseem Akhtar & another ......Respondents CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. B.S. Jaswal, Advocate for the appellants. Mr. R.P. Kansal, Advocate for the respondents. NIRMALJIT KAUR, J. The plaintiff-appellants have filed a suit for separate possession of ½ share by way of partition of a suit property/house claiming themselves as the sole legal heirs of late Babu Khan, who was alleged to be the owner of this property. The defendant-respondents appeared and filed their written statement and submitted that Babu Khan was not the owner of the property but, in fact, the same was acquired by defendant No.1 from one Bachittar Singh. On the basis of their pleadings, besides other issues, issue No.1 was framed, which reads as follows :- “1. Whether plaintiff is entitled to separate possession of ½ share of the suit property ? OPP” The suit of the plaintiff was partly decreed by the Civil Judge (Jr. Division), Rupnagar on 21-03-2002 to the extent that defendant No.1 is S.A.O. 50 of 2005 -2- entitled for 1/8th share out of the suit property and out of remaining 7/8th share, double the share will go to plaintiff No.2 and defendant No.2 being male/sons and the rest of the share will go to plaintiff No.1 being female/daughter. Dissatisfied with the decree, the respondent-defendants filed an appeal and pleaded that Babu Khan was not the owner of the property and it was Bachittar Singh, who gave the property to defendant No.1 and the defendant No.1, constructed the house with his own hands. It was further argued that the main issue involved in this case was with respect to the ownership of the suit property, but, no issue to this effect was framed. After hearing, the Additional District Judge, Ropar vide his order dated 16-09-2005 set aside the judgment dated 21-03-2002 and remanded the case back to the trial Court to give findings after framing the issue of ownership of the suit property. Aggrieved with the said order of remand, the appellants have filed the present appeal, challenging the order of the Appellate Court. Mr. B.S. Jaswal, learned counsel for the appellants contended that the issue, as framed by the Appellate Court, in terms of its impugned order dated 16-09-2005, is not triable, in as much as defendant No.1- Naseem Akhtar Khan took the stand that she had purchased the suit property from one Bachittar Singh, whereas, no sale deed executed by Bachittar Singh, in her favour, has been produced. Further it is submitted that as per the findings recorded by the Civil judge (Jr. Divn.) Rupnagar vide its order dated 21-03-2002, no document to prove the fact of sale had been proved by the defendants. Meaning thereby, the property was owned by Babu Khan. Reliance has also been placed on the judgment of Hon'ble the Apex Court, titled as P. Purushottam Reddy and another vs. M/s Pratap Steels Ltd. AIR 2002 Supreme Court 771 to substantiate that it is S.A.O. 50 of 2005 -3- only in exceptional cases the Court may exercise the power of remand dehors the Rules 23 and 23A. The Appellate Court should not order a remand when the case is not covered either by Rules 23, 23-A or Rule 25 of the Code of Civil Procedure. It was further submitted that in the circumstances, the Appellate Court should have either dismissed or allowed the appeal but under no circumstances, it could have remanded the matter as the issue regarding plaintiffs' right to ½ share for separate possession, as framed in issue No.1 was sufficient and covered the issue raised in the suit. Thus, the provision of Order 41 Rules 23 and 25 of the Code of Civil Procedure has been wrongly exercised by the Appellate Court. Learned counsel for the defendant-respondents, while defending the order of the Appellate Court for remand, submitted that the issue of the ownership of the suit property was material. It was contended that the plaintiffs wanted to take possession of the suit property on the basis of ownership of Babu Khan, whereas, the ownership of Babu Khan was being disputed by the defendant and that the trial Court, while deciding issue No.1, came to the conclusion that Babu Khan was the owner without framing the issue as to whether Babu Khan was the owner of the property or not. Learned counsel for the parties were heard at length. The question before this Court is as to whether the Issue no.1 would include the issue as to whether the property belongs to Babu Khan or not ? Order XIV Rule 1 of the Code of Civil Procedure describes various situations, under which the issues should be famed. The order XIV Rule 1 of the Code of Civil Procedure reads as follows :- “1.Issue arise when a material proposition of fact or law is affirmed by one party and denied by the other. S.A.O. 50 of 2005 -4- 2. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. 3. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.” The appellants herein, are claiming their right to the said property, on the basis of their being legal heirs of Babu Khan. The respondents duly took the stand that Babu Khan was not the owner of the property. Rather it belonged to Bachittar Singh, who further gave it to Naseem Akhtar. In a situation, where contradictory stand is taken, it is the duty of the trial Court to read the plaint and written statement and accordingly, frame the issue. A specific plea was taken by the defendant- respondents that the property does not belong to Babu Khan. In such a situation, the issue should have been duly framed. Although, it was duly observed that the only question to be seen is as to whether the suit property was previously owned by deceased-Babu Khan or not, yet, the said issue was never framed. In case, this issue had been framed, the defendant-respondents would have led evidence to show that the property did not belong to Babu Khan. Whereas, the findings have been recorded without taking into account the evidence produced by them in the form of Jamabandi (Exhibit D-3) and Khasra Girdawari (Exhibit D-4). It was not their case that Bachittar Singh sold the property to Naseem Akhtar rather it was a case of Bachittar Singh having handed over the property to Naseem Akhtar. The stand is apparent from the written statement. Hence, the question of producing the sale deed does not arise. Their claim was based on the evidence as produced in the form of S.A.O. 50 of 2005 -5- Exhibits D-3 and D-4, which has not been noticed by the trial Court. Thus, the issue No.1, as framed, was in itself not sufficient and a separate issue, as to whether, Babu Khan was the owner of the property or not, should have been framed. It is, therefore, apparent that the defendant-respondents had specifically denied the ownership of Babu Khan, whereas, the plaintiff- appellants claimed their right on the basis of their being legal heirs of Babu Khan. Thus, in the face of the contradictory stand, the issues should have been framed. The dispute, in this case, is totally covered under Clause (i) of Order XIV Rule 1. The learned counsel for the appellants placed reliance on the judgment of Hon'ble the Apex Court in the case of P. Purushottam Reddy and another (supra), wherein, it is held that the Appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23or Rule 23-A or Rule 25 of the CPC. Rather, the present case is covered by Order 41 Rule 25 of the Code of Civil Procedure which reads as follows :- “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to be Appellate Court essential to the right decision of the suit upon the merits, 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; S.A.O. 50 of 2005 -6- and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore [within such time as may be fixed by the Appellate Court or extended by it from time to time]. Rather, the Apex Court in the case of P. Purushottam Reddy and another (supra) held as follows :- “ The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court.” Taking into consideration the judgment of the Apex Court, the Appellate Court should have either framed the issue or went on to decide the appeal after taking into account the additional evidence, required to be led by the defendants or remanded the case back to the trial Court S.A.O. 50 of 2005 -7- without setting aside the judgment and directed the trial court to record the evidence and sent the report after recording its findings to the Appellate Court. Accordingly, the appeal is partly allowed and the order dated 16-09-2005 passed by Additional District Judge, Ropar is partly modified to the extent vide which the judgment and decree dated 23-04-2002 passed by Additional District Judge, Ropar has been set aside. The present appeal is accordingly modified with the directions that the order dated 16-09-2002 passed by the Additional District Judge, Ropar, is set aside only to the extent vide which the judgment and decree under appeal dated 21-03-2002 is set aside. The Civil Judge (Jr. Divn.) Ropar will now record findings on the issue as to “whether Babu Khan was the owner of the suit property ? OPP” after giving proper opportunity to both the parties and send its report to the Appellate Court of Additional District Judge, Ropar and the Appellate Court shall, thereafter, hear the appeal after taking into consideration the report submitted by the trial Court. The parties are, accordingly, directed to appear before the trial Court on 24-08-2009. Disposed of accordingly. (NIRMALJIT KAUR) JUDGE July 28,2009 gurpreet Whether to be referred to the Reporter : Yes / No