1 S.B. CIVIL WRIT PETITION NO.5374/2004 PAGAM SINGH VS MOHAN LAL & ANR. DATE OF ORDER: 11.3.2005 HON'BLE MR.PRAKASH TATIA,J. Mr. J.K.Bhaiya, for the petitioner. Mr. Mohan Lal respondent no.1 present in person. <><><> The case has been listed in court on application submitted by the respondent no.1 under Article 226(3) of the Constitution of India for vacating the stay order granted by this court on 24.2.2005. Learned counsel for the petitioner submitted that the writ petition itself may be heard and decided. The respondent no.1 present in person also requested to decide the writ petition finally. Heard learned counsel for the petitioner and respondent who is present in person. The petitioner is aggrieved against the order dated 29th Sept., 2004 by which the trial court rejected the application filed under Order 2 14 Rule 5 CPC and refused to frame the issue as proposed by the petitioner on the plea of adverse possession. According to learned counsel for the petitioner, the petitioner took a specific plea in the written statement that he became the owner of the property by adverse possession, but no issue was framed by the trial court and the trial court rejected the petitioner's application by non-speaking order. It is also submitted that the court was under obligation to frame the issue as per the pleadings and the case set up by the parties. The respondent present in person, submits that the plea taken by the defendant is covered under the issue no.3. The respondent no.1 after verifying the fact from his own record admitted that inadvertently in the issue no.3, the word 'Malik' has not been mentioned, which is apparent from the issue itself. It is also submitted that the plea taken by the defendant is covered under the issue no.3, therefore, the trial court, rightly rejected the petitioner's application filed under Order 14 Rule 5 CPC. I perused the order dated 29th Sept., 2004. A bare perusal of the order dated 29th Sept., 2004 reveals that the trial court has not applied its mind to the facts of the case and did not even care to look into the 3 issues framed by the court, otherwise, the trial court could have noticed the mistake in the issue framed by the court and would have corrected the mistake. Be that as it may, further, the trial court even rejected the petitioner's application by non-speaking order by merely saying that the court is not feeling it necessary to frame the issue without giving any reason. In view of the statement of respondent no.1 himself that the issue no.3 has been framed only on the basis of the plea taken by the defendant and the word 'Malik' is missing in the issue no.3 and in view of the statement of the respondent no.1 that the plea sought to be raised by the respondent petitioner is covered by the issues nos.3 and 7, therefore, the issue no.3 be read to have a word 'Malik' in between the words 'Bahaisiyat' and 'Kabiz' so as to make the issue complete. The contention of learned counsel for the petitioner that there is no mention of plea of adverse possession in issue no.3 or 7, for this, it is suffice to say that the issue was framed on the basis of the plea of the defendant and when the foundation of the claim of the defendant in the pleading is the adverse possession then certainly, the issue no.3 fully covers the plea taken by the defendant petitioner. In view of the above, the writ petition of the petitioner is partly 4 allowed and the issue no.3 be amended by the trial court in the light of this order. (PRAKASH TATIA), J. c.p.goyal/-