IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No 271 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- SAYED MAHMADBHAI RAHIMBHAI Versus BAI SUBHANKHATU W/O DECEASED RASULBHAI VALIBHAI -------------------------------------------------------------- Appearance: MR RM VIN for Petitioner MR NALIN K THAKKER for Respondent No.1/1 to 1/7 -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 07/01/97 ORAL JUDGEMENT 1. The original plaintiff, appellant has filed this appeal from order under Order 43 Rule (1)(u) of the Civil Procedure Code, 1908, against the judgment and order of the remand dated 27th March, 1989 passed by the learned Assistant Judge, Bharuch, in Regular Civil Appeal No.111/84 which has arisen out of the judgment and decree dated 9th May, 1984 passed by the learned Civil Judge, (J.D.) at Ankleshwar in Regular Civil Suit No.49/80. 2. The facts of the case, in brief, are that block no.225 admeasuring 3 acres and 7 gunthas and block no.201 admeasuring 19 acres and 19 gunthas of village Ambehta Tal. Hansot were originally belonging to Rasul Minya Vali Minya , and the said lands were in possession of the said person. In his lifetime, late Rasul Minya Vali Minya has made a gift deed on 8-2-1973 in respect of block no.225 and gifted the suit land to Saiyed Mohammedbhai Rahimbhai, original plaintiff (appellant herein in this appeal). The land of block no.201 has also been gifted by late Rasul Minya Vali Minya under a gift deed dated 14th May, 1973 in favour of the original plaintiff, appellant herein. Late Rasul Minya Vali Minya handed over the possession of both the block numbers to the original plaintiff, appellant herein and since then the plaintiff is claiming his possession over both the blocks. The respondent herein (since deceased and now represented by her legal heirs and representatives) was a widow of late Rasul Minya Vali Minya. It is the case of the plaintiff-appellant that, she started making harassment to him by creating false right over the land of said blocks, and mutation entry no.1938 was effected on 6-3-1973 on the basis of the gift deed dated 8-2-1973 in favour of the plaintiff appellant which came to be cancelled later on on the ground that no permission was obtained for the gift of the land under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Later on vide mutation entry no.1956, the name of the respondent, since deceased, Bai SubhanKhatun widow of late Rasul Minya Vali Minya was inserted in the record of rights on 18-5-1973. That entry was corrected and vide entry no.1959 dated 3-6-1973, the name of plaintiff-appellant was mutated in the revenue record and the said entry was taken into the register and it was certified. The respondent, since deceased, widow of Rasul Minya Vali Minya preferred an appeal against the certification of the mutation entry no.1959 before the Prant Officer. The Prant Officer disposed of the said appeal of the widow of Rasul Minya Vali Minya the respondent herein, since deceased, with the direction to the parties to establish their rights in the civil court and till then the name of respondent, widow of Rasul Minya Vali Minya is to be continued in the revenue record. The plaintiff-appellant preferred an appeal against the aforesaid order of Prant Officer, but the said appeal came to be rejected. The plaintiff-appellant has further taken up the matter before the Special Secretary, Revenue Department, but the revision application has also been rejected. The plaintiff-appellant preferred a Special Civil Application No.1591/76 before this court wherein this court has observed that the parties to resolve their dispute in civil court and rejected the Special Civil Application. Thereafter, the plaintiff-appellant filed the suit, out of which this appeal has arisen, in the court of Civil Judge (J.D.), Ankleshwar being regular civil suit no.49/80 for declaration that he is the owner of the land in dispute on the basis of the registered gift deeds dated 8-2-1973 and 14-5-1973 and to get remove the name of the respondent, widow of Rasul Minya Vali Minya from the revenue record. 3. The defendant-respondent, since deceased, widow of late Rasul Minya Vali Minya has filed written statement wherein it is averred that deceased Rasul Minya Vali Minya was not personally cultivating the suit lands, but one Mayudin Sidhdhu Minya was cultivating the suit lands since many years as protected tenant and the said tenant used to give the share. It has further been stated that before Mayudin Sidhdhu Minya, one Mohammed Hamir was cultivating the suit land as a tenant and he used to give the share. Thereafter new Tenancy Act came into force in the year 1956 and therefore late Rasul Minya Vali Minya had made an attempt to take the possession of the suit land from tenant Mayudin Sidhdhu Minya, but later on Mayudin Sidhdhu Minya was allowed to cultivate the land. Deceased Rasul Minya Vali Minya started suffering from disease of T.B. and his widow respondent herein, since deceased, used to look after him and to make arrangement for his treatment and he was also taken to Surat for treatment. The son of sister of deceased Rasul Minya Vali Minya namely Aabednn Mohamed otherwise used to help her financially, but the plaintiff had never made any help to her. It is further submitted that before six months of death, the condition of Rasul Minya Vali Minya became very serious and thereafter Dr. Mohan Chikligar was coming to house to make treatment and according to the advise of the said doctor, deceased Rasul Minya Vali Minya was kept at the house of plaintiff at Hansot for treatment and the defendant-respondent, since deceased, also remained with him. During the period when late Rasul Minya Vali Minya remained in the house of plaintiff-appellant, he got obtained the signatures of him on the documents. It is further averred in the written statement, by deceased respondent, that the plaintiff-appellant used to tell that late Rasul Minya Vali Minya was in the need of money and therefore he was demanding money from the respondent and the plaintiff was also pursuing Rasul Minya Vali Minya to part with the land and used to give mental torture to late Rasul Minya Vali Minya. Rasul Minya Vali Minya was not in a position to take any decision. It has further been averred that the documents i.e. the gift deeds are against the Mohammedan law and they are not binding to the defendant-respondent. Further pleading has been made that the plaintiff-appellant has taken undue advantage of the mental and physical condition of late Rasul Minya Vali Minya and has got obtained the signature of the deceased though deceased had got no right to make any such document. It is further case of the defendant-respondent in the written statement that the possession of the suit land was never delivered to the plaintiff as the land was in possession of the tenant. The gift deeds obtained by the plaintiff were declared illegal under the Revenue Law and on knowing about this, the plaintiff again got made will dated 15th May, 1973 in his favour and he made a representation before the Revenue Officer to assert his right under the will. Further defence has been taken that the mutation entry no.1938 dated 6-3-1973 was cancelled and therefore the suit is barred under the provisions of Bombay Revenue Jurisdiction Act. The defendant-respondent has come up with a case that the plaintiff forcefully obtained the possession after quarrels with Mayudin Sidhdhu Minya and criminal case was also filed, but it was subsequently compromised. 4. On the basis of pleadings of the parties, the learned Trial Court framed as many as six issues after recording the evidence of the parties and hearing them the learned Trial Court has come to the conclusion that the plaintiff has proved that he is the owner and in occupation of the suit property and has also proved that the original owner of the suit property, late Shri Rasul Minya Vali Minya had executed registered gift deeds dated 8-2-1973 and 14-5-1973 in his favour. The learned Trial Court held that the suit filed by the plaintiff is not barred by the provisions of the Bombay Revenue Jurisdiction Act and the gift deeds are not illegal and invalid and therefore decreed the suit. 5. The defendant-respondent filed a regular appeal no.111/74 in the court of Assistant Judge, Bharuch. On the basis of the submissions advanced by the learned counsel for the parties and in view of the pleadings in the appeal, the learned first appellate court thought to frame only one point for consideration which reads as under: "Whether the learned Trial Judge has erred in deciding the suit." The point framed by the first appellate court found favour and judgement and decree of the Trial Court dated 9-5-1984 was set aside and the suit was remanded for fresh trial according to the observations made in the judgment. 6. Against this judgment and order of the first appellate court, the plaintiff-appellant filed this appeal before this court. During the pendency of this appeal, the sole respondent, Bai Subhan Khatun,widow of late Rasul Minya Vali Minya expired and C.A. No.1714/89 has been filed and her legal heirs and representative, the respondents no.1/1 to 1/7 were brought on record by this court vide order dated 20th April, 1990. 7. The learned counsel for the plaintiff-appellant, Shri R.M. Vin contended that the first appellate court has committed serious error in holding that the Trial Court has not raised necessary and material issues. It has next been contended that the Trial Court has raised all the necessary issues on the basis of the pleadings of the parties, and as such, it has exceeded its jurisdiction to remand the matter for fresh trial. Carrying further this contention, the counsel for the plaintiff-appellant contended that the issues are to be framed on the basis of the pleadings of the parties and if a material issue which does arise from the pleadings has not been framed then the party has sufficient remedy available to move the court for framing of the proper issues under Order 4 Rule 5, C.P.C., which has admittedly not been done in the present case. The very fact that the defendant-respondent has not made any complaint at any point of time during the trial, that the proper issues have not been framed, shows that the issues framed were accepted to be sufficient and material issues in the case. Lastly, the counsel for the petitioner contended that the issues no.1 to 3 which have been framed in this case are comprehensive and whatever defence which the defendant-respondent wanted to raise are covered under the said issues. What exactly the court has done, to patch the lapses or the weaknesses of the case of the party, the defendant-respondent, the matter has been remanded. 8. On the other hand, the counsel for the respondents no.1/1 to 1/7 has supported the order of the appellate court. Further the counsel for the respondents contended that this court has very limited power of judicial review in the order made by the appellate authority while hearing the appeal filed under Order 43, Rule (1) (u) of C.P.C.. 9. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. The issues which have been framed by the Trial Court are to be taken, which read as under: 1. Whether the plaintiff proves that he is the owner and occupant of the suit property? 2. Whether the plaintiff proves that the original owner of the suit property had executed gift deed dated 8-2-1973 and 14-5-1973 in his favour? 3. Whether the defendant proves that the gift deed dated 8-2-1973 and 14-5-1973 are not legal and valid? 4. Whether the defendant proves that the plaintiff's suit is time barred according to the provisions of Bombay Revenue Jurisdiction Act? 5. Whether the plaintiff is entitled to get declaration as prayed for? 6. What order and decree? 10. The appellate court framed only one point for consideration, namely, "Whether the learned Trial Judge has erred in deciding the suit." Reference has been made by the appellate court to the application filed by the respondent, Ex.30 in which a point has been raised that in the written statement the respondent, appellant herein, has already taken the dispute that Mayudin Sidhdhu Minya is tenant of the said land and this fact has also come in the evidence and in view of the pleadings, the said person is necessary party and in the absence of the said person no effective decision of the suit can be given and therefore it is necessary to frame issue, whether the suit is tenable in the absence of the said person as a party. This contention of the respondent was not found favour with the appellate court and the court has opined that in the written statement, no plea has been taken by the respondent that the said person is a necessary party. In the absence of pleadings on this point, the first appellate court has declined to frame any issue. Then the court proceeded to examine the matter on other points. In para no.12, the court has stated that, looking to the issue it appears that the Trial court has not framed material issues. The court has proceeded that in the case, the defendant, respondent herein, has challenged the validity of the gift deeds on the point of delivering the possession of the property. Though this plea has been taken, the Trial Court has framed general issue, whether the gift deeds are valid or not. What the first appellate court has observed is that when the validity of the gift deeds have been challenged on many counts then each count will be a point of issue and if a general issue has been framed then the parties would not be able to lead evidence categorically on each point. The first appellate court then concluded that the learned Trial Judge has erred in not framing issues on point of possession and delivery of possession and therefore it is required to frame these issues. I do not find any justification, much less any legality in the judgment of the first appellate court to order for framing of issues on the point of possession and delivery of possession. One of the invalidity in the gift pointed out by the defendant-respondent was that the possession thereof could not have been delivered, as the land was in possession of the tenant. This pleading has been made by the defendant-respondent in the written statement and the issue, which has been framed in the present case, "Whether the gift deeds are valid or not" is comprehensive and the defendant-respondent was to produce the evidence on which the validity of the gift deeds has been challenged. The issue, whether gift deeds were valid or not is sufficiently wide and specific which gives out clearly to the party that they have to lead evidence on all the counts on which the validity of gift has been challenged by them in the written statement. In case the reasoning which has been given by the first appellate court is accepted then what the court has to do to frame the issues after issues on a question of validity of gift deeds which has been raised by the defendant-respondent. The matter would have been different where no issue have been been framed on the question of validity of the gift deeds. This issue has been framed on the basis of pleadings of the defendant-respondent that the gift deeds were not valid. The counsel for the defendant-respondent has failed to cite any authority or any provision from C.P.C. to show that the issue on each count of invalidity of the gift deeds, where the trial court has framed the issue, whether the gift deeds are valid or not, has to be framed. Moreover, the learned counsel for the defendant-respondent has failed to show and establish before this court how any prejudice has been caused to the party by not framing the issue regarding the possession and delivery of the possession of the suit property to the donee. It is not in dispute that the defendant-respondent was aware of this fact that for the valid gift in Mohammedan Law, the delivery of the possession of the property is necessary. This pleading has been raised, and as such, they have to produce the evidence and no specific issue on this count was required to be framed as it is covered by the issue framed by the Trial Court, i.e. whether the gift deeds are valid or not. The issue no.3 framed by the Trial court is that whether the defendant proves that the gift deeds dated 8-2-1973 and 14-5-1973 are not legal and valid, which has been framed on the basis of the pleadings in the written statement. The burden of proving this issue was on the defendant and it covers the count of illegality of the gift deeds on the points of possession and delivery of possession. It is not the case where the court has not considered the pleadings of the parties. The defendant's pleading has been taken into consideration and the issue which emerges therefrom has been framed, which is sufficiently wide enough to cover all the counts of illegality pointed by them in the gift deeds. 11. The next point taken by the appellate court is that looking to the pleading with respect to mutation entry no.1938, it can be said that the defendant-respondent raised dispute that transaction is against the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, and therefore, the suit is not tenable. In the opening of para no.13,the appellate court has observed that in the written statement, the defendant has taken contention that the mutation entry no.1938 is cancelled on 5-7-1973 and therefore, the suit is not maintainable. So in sum and substance, the contention of the defendant-respondent in the written statement was that the gift deeds were invalid as they have been made in contravention of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act. This point again relates to the validity of the gift deeds. The issue no.3 which has been framed in the present case covers this issue also and ultimately if the court holds that the gift deeds have been made in contravention of the provisions of the aforesaid Act then the suit is liable to be dismissed. 12. So far as the other contention that the entry no.1938 is cancelled on 5-7-1973 and as such the suit is not maintainable, it also relates to the same issue and the point, and the court could have considered the matter under issue no.3 for which no separate issue was required to be framed. It appears that something more has been added by the appellate court to the written statements, then what the defendant-respondent has pleaded therein. The substance of the matter has to be considered, otherwise also, this point was not tenable for the reason that at no point of time, the defendant-respondent, in the Trial Court, has made an application for framing of any additional issue on this question. Secondly, at no point of time, the defendant has taken any objection that the nonframing of the issue on the subject aforesaid will cause any prejudice to her. It has also not come out from the judgment of the first appellate court that nonframing of the issue on the point has caused any prejudice to the defendant-respondent. The matter was in the first appeal and in a cursory and casual manner the matter should not have been remanded. The appellate court has not considered that sufficient protection of rights of the parties has been provided under the code and if at any point of time the defendant has failed to avail of that right then the appellate court should not have protected him. If the gift contravenes any of the provision of the Bombay Fragmentation and Consolidation of Holdings Act then it is a question, relating to the validity of the gift deeds, which is fully covered under issue no.3, which is framed in the present case. It is an erroneous approach on the part of the appellate court to hold that if this issue is not decided then it is to be referred to the competent authority under the aforesaid Act. This is a civil dispute and in case, the gift deeds are invalid then the consequence thereof is the dismissal of the suit filed by the plaintiff-appellant. The first appellate court then by referring to the written statement observed that the appellant, the respondent herein, has taken a contention that the gift deeds are got executed in the period of serious illness of deceased and therefore this pleading would go to show that the appellant, the respondent herein, has raised the contention that the deeds are not executed with sound mind and hence the issue is required to be framed as to whether the appellant proves that gift deeds are not executed with sound mind by the donor. The issue no.3 as framed in the suit will squarely cover this issue also. Under issue no.3, the defendant has to prove that the gift deeds are not legal and valid and this is one of the ground of invalidity in the gift deeds. Issue no.3 comprehends all the objections raised by the respondent against the validity and legality of the gift deeds for which, as stated earlier, no separate issue is required to be framed. Lastly, the first appellate court has observed that the issue regarding limitation has not been framed. Issue no.4 is there on the question of limitation, but still the court insisted for finding the fault with the judgment of the trial court. The first appellate court has set aside the decree of the trial court, as it found that the judgment and decree is required to be set aside and retrial is considered necessary for the true and just decision of the case. The appellate court has found the error in judgment as in its opinion material issues were not framed, but in this case the issues no.3 and 4 cover all the defences raised by the respondent in the written statement and issue no.3 is being comprehensive, no issue as pointed out by the appellate court is required to be framed. It is a case where the respondent has taken a chance to fill up the gaps and lapses on its part to produce the proper evidence on the defences taken by her, which are covered under issue no.3. 13. In the result, this Appeal From Order is allowed and the order of the first appellate court dated 27th March, 1989, passed by the learned Assistant Judge, Bharuch in Civil Appeal No.111 of 1984 is set aside and the court below is directed to decide the appeal, filed by the respondent, on merits. ********** zgs/-