S.A.O.No.30 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-18.8.2010 Inder Singh son of Deep Chand ...Appellant Versus Randhir Singh and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Kulvir Narwal, Advocate for the appellant. Nemo for the respondents. M ehinder S ingh S ullar , J . (Oral) The challenge in this appeal filed by appellant Inder Singh son of Deep Chand is to the judgment dated 30.8.2000, by virtue of which, the Ist appellate Court accepted the appeal, set aside the judgment and decree dated 7.10.1998 and remanded the case to the trial Court for its fresh decision. 2. The conspectus of the facts, culminating in the commencement, relevant for a limited purpose of deciding the core controversy involved in the instant appeal and emanating from the record, is that Randhir Singh son of Bharte respondent No.1-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of permanent injunction restraining Inder Singh son of Deep Chand appellant-defendant and Savitri widow of Ramphal proforma-respondent No.2- defendant (hereinafter to be referred as “the defendants”) from interfering into his peaceful possession, inter-alia, pleading that the parties to the suit had a common ancestor namely, Harphul, who was owner of the house in dispute. The plaintiff and defendants have separated about 20 years back. They mutually and orally partitioned the residential house by metes and bounds. The portion shown in red colour in the site plan had fallen to the share of the plaintiff, whereas the portion S.A.O.No.30 of 2000 2 shown in green colour fell to the share of the defendants. Since then, they are exclusive owners and in possession of their respective portions of the disputed property. The defendants threatened to demolish the intervening wall marked by letters XY in the site plan without any legal right. Concisely, the plaintiff claimed that he is owner and in possession of the portion in question, but the defendants intend to disturb his possession without any legal right. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of permanent injunction against the defendants in the manner described here-in-above. 3. The defendants contested the suit and filed their written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit; estoppel and locus standi of the plaintiff. On merits, the defendants claimed that the site plan submitted by the plaintiff was incorrect. The house denominated by letters FBCE and shown in yellow colour had fallen to their shares including the passage (Gali) marked by letters HJBI. They are using the passage for their ingress and egress to take their tractor in the open court-yard of their house. They have installed a shutter at the end of Gali and plaintiff has got no right, title or interest in it. The plaintiff earlier wanted to close the disputed Gali in the year 1984. A panchayat of respectables was convened by the parties. The matter in dispute was resolved on 9.10.1984. The plaintiff had thumb marked the compromise deed (Panchayati Faisla) in token of its correctness. Now again, he intends to illegally close the Gali in question. It will not be out of place to mention here that the defendants have stoutly denied the ownership and possession of the plaintiff over the disputed portion and all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- S.A.O.No.30 of 2000 3 1. Whether plaintiff is entitled to a decree for permanent injunction, as alleged?OPP 2. Whether suit is not maintainable in the present form?OPD 3. Whether plaintiff is estopped from filing the present suit by his act and conduct?OPD 4. Whether plaintiff has not come to the court with clean hands?OPD 5. Relief. 5. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 6. Taking into consideration the evidence on record, the trial Court decided issue No.1 against the plaintiff, while issues No.2 to 4 were answered in favour of the defendants. On ultimate analysis of evidence on record and in view of findings on various issues, the trial Court dismissed the suit of the plaintiff, by virtue of judgment and decree dated 7.10.1998. 7. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal. The first appellate Court accepted the appeal, set aside the judgment and decree and remanded back the case to the trial Court for its fresh decision, vide judgment dated 30.8.2000, which has been challenged by the appellant-defendant in the instant appeal. That is how, I am seized of the matter. 8. Having heard the learned counsel for the appellant-defendant, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 9. Ex-facie, the argument of learned counsel that since the trial Court has rightly dismissed the suit of the plaintiff on merits, so the appeal was wrongly accepted and the matter was illegally remanded back to the trial Court by the first appellate Court, is neither tenable, nor the observations of Hon'ble Apex Court in case Kunju Kesavan v. M.M.Philip and others A.I.R.1964 Supreme Court 164 and this Court in cases Chhote Lal v. Piare Lal through his L.Rs. 1992 (1) R.L.R. S.A.O.No.30 of 2000 4 389 and Gangi v. Gian Kaur andothers 1990 P.L.J. 228 are at all applicable to the present controversy, wherein, it was observed that if both the parties understood what the issue in the case was, then absence of framing of issue did not lead to mistrial sufficient to vitiate the decision and the appellate Court cannot make an order of remand without coming to a conclusion that the decision of the trial Court is wrong and that it is necessary to reverse or set aside the judgment and decree. Hardly, there is any dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the appellant in the instant appeal. 10. As is evident from the record that the parties to the suit are progeny of common ancestor Harphul, who was owner of the disputed property. The plaintiff claimed that he has partitioned the house by way of family settlement and by metes and bounds, he is residing in his residential house and is in possession of the disputed portion as well. The defendants have categorically denied his possession over the disputed portion depicted in the site plan and pleaded that there is an intervening wall in between their respective houses. On the contrary, according to the defendants, the passage or Gali in dispute is being used by them for ingress and egress to their houses. The Ist Appellate Court acknowledged the factum of situation of property detailed in the site plan and observed in para Nos.10 to 12 as under:- “10. Not only that the learned trial court set up a new case which is neither pleaded by the parties nor is proved but also omitted to record finding on the controversy raised by the plaintiff. The latter alleged that the defendants be restrained to demolish the intervening wall marked in words XY in the attached site plan and to disturb his possession in the house. But surprisingly no finding in this regard was recorded. Even issue to this effect was not framed. Issues should have been framed according to the pleadings of the parties. When the plaintiff raised the plea that there is a wall in between his house and of the defendants then specific issue qua this should have been framed and finding be recorded on it. 11.Defendants though admitted that there is a wall in between their house and of the defendants but pleaded that it extends upto the gali marked by S.A.O.No.30 of 2000 5 letters H J B I. The gali in question is 7 feet wide came in their share in the partition and they are using it for ingress and egress to their house since then. But nothing was placed on the record to prove it. Even it was not suggested to Randhir Singh plaintiff when he came in the witness box. If the gali in dispute was left for the use of the defendants in the partition then it should have been put to the plaintiff but it was not. Thus, it cannot be said that any gali for the use of the defendants was left at the time of partition. The learned trial court observed while discussing issue no.1 “that the compromise deeds which came into existence when the members of the panchayat got the matter resolved between the parties and are (Ex.DW1/A and Ex.DW3/A) do not amount to gift. Rather it is an exchange. But it is none of the case of the parties. No party alleged that any such exchange took place. Which property was taken from the share of the plaintiff and which was given to him in lieu of it. It could not be understood as to how the learned trial court so held and on what basis. Inder Singh one of the defendants as (DW4) though stated that it was resolved by the members of the panchayat that if the land/property of the plaintiff would be found lesser than his share then he will be compensated. He never stated that the plaintiff got less property in the partition and any land was given on promised to be given to him in lieu of it. Defendants also never pleaded it. 12.To my mind, to resolve the controversy involved in this case, fresh issues should be framed and case be remanded to the trial court to decide it afresh. Thus, the following issues are hereby framed:- 1. Whether there is a wall marked in words X Y in between the house of the plaintiff and the defendant as alleged?OPP. 2. Whether 7 feet wide gali was left towards the eastern side of the house of the plaintiff for the defendants for in-gress and egress to their house at the time of partition and is used by them since then as alleged?OPR 3. Whether the intervening wall extends upto the gali and shutter was fixed by the defendants at the beginning of it, if so to what effect?OPR” 11. In this manner, the first appellate Court has rightly came to the conclusion that the matter deserves to be remanded in this relevant context. 12. The next argument of the learned counsel that the remand order is not in consonance with law, is not only devoid of merit but misplaced as well. It is not a matter of dispute that the trial Court has decided the case on merits and in S.A.O.No.30 of 2000 6 that eventuality, the case can validly be remanded by the first appellate Court under Order 41 Rule 25 CPC, which postulates that “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 the 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; 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 therefor.” 13. As is clear from the record, not only that the trial Court failed to frame the essential issues arising out of pleadings, but omitted to decide the real controversy between the parties as well. The error was rectified by the first appellate Court by way of framing the aforesaid three issues and rightly directed the trial Court to record the findings on the indicated issues and to decide the case afresh. In this manner, there is a substantial compliance and order of remand is in consonance with the legal provisions of Order 41 Rule 25 CPC. The law laid down by this Court in SAO No.31 of 2005 titled as “Gurpreet Singh and Navdeep Singh vs. Sapinder Pal Kaur and others” decided on 12.08.2010 “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Thus, the contrary arguments of the learned counsel for the appellant-defendant “stricto sensu” liable to be and are hereby repelled under the present set of circumstances. Therefore, the impugned judgment of Ist appellate Court deserves to be and is hereby maintained in the obtaining circumstances of the case. 14. Neither any other legal infirmity has been pointed out nor any legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendant. S.A.O.No.30 of 2000 7 15. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the course of trial of the suit, as there is no merit, therefore, the present appeal is hereby dismissed as such. (Mehinder Singh Sullar) 18.8.2010 Judge AS