HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 61 of 2000 Decided on: 20.10.2010 Shiv Diyal and another ……Appellants. Versus Karam Chand and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.R.K. Gautam, Senior Advocate, with Mr.Vikrant Chandel, Advocate. For respondents No.1 and 2: Mr.Y.P.S. Dhaulta, Advocate. For respondents No.3 to 5: Mr.Sanjeev Sharma, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellants under Section 100 of the CPC against the judgment and decree, dated 1.12.1999, passed by the learned District Judge, Kullu, H.P., vide which, he upheld the findings of the court of learned Sub Judge Ist Class, Manali, dated 24.3.1999, decreeing the suit of respondent No.1 for declaration and permanent injunction as against the appellants. 2. Briefly stated, the facts of the case are that respondent No.1 Karam Chand, hereinafter also referred to as the plaintiff, filed a suit for declaration and for permanent injunction as against the appellants, hereinafter also referred to as the defendants. It was alleged that ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - the land in suit, as detailed in the plaint, was owned and possession by Kesri Devi, wife of Uttam Ram. It was also alleged that the plaintiff had been residing with Smt.Kesri Devi after the death of her husband Uttam Ram 30 years ago and had been rendering services to her. The defendant never resided with the deceased nor rendered any services to her. Smt.Kesri Devi had executed a valid Will, dated 27.12.1980 in favour of the plaintiff in lieu of past and future services rendered by him. Smt.Kesri Devi died on 27.11.1993 and on her death, the plaintiff succeeded to her estate on the basis of the said registered Will and is the exclusive owner in possession of the same. During the attestation of mutation on the basis of the Will, defendants claimed that Smt.Kesri Devi had made an unregistered Will, dated 12.8.1993, in favour of the plaintiff and defendants No.1 to 3 equally and mutation was attested on the basis of the said unregistered Will, dated 12.8.1993. The said Will was alleged to be forged one having been prepared after the death of Smt.Kesri Devi, who never executed any such Will in favour of the defendants. It was alleged that on the basis of the said Will and mutation order, the defendants are threatening to dispossess the plaintiff from the suit property and are interfering in the possession of the plaintiff, hence the suit filed by the plaintiff for declaration and for permanent injunction. 3. Defendants No.1 and 3 took up the plea that the suit property was inherited by Smt.Kesri Devi from her - 3 - husband Uttam Ram and they denied that the plaintiff had been rendering services to Smt.Kesri Devi. However, they pleaded that defendants No.1 to 3 were rendering services to Smt.Kesri Devi and she executed a valid Will in their favour, dated 12.8.1993, and defendants No.1 to 3 have inherited the suit property in equal shares and as such, the suit of the plaintiff is liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether deceased Smt.Kesari Devi executed last and final Will dated 27.12.1980 in favour of the plaintiff, as alleged? If so, its effect? OPP 2. Whether deceased Smt.Kesari Devi superseding the will dated 27.12.80 executed last and final will dated 12.8.1993, as alleged? If so, its effect? OPD 3. Whether the suit is not maintainable in the present form, as alleged? OPD 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Whether the plaintiff has not come with clean hands by suppressing the true facts and is not entitled for the discretionary relief of injunction? OPD 6. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the Will in favour of the plaintiff was duly proved while the Will set up by the defendants was not relied upon and consequently the suit for declaration and permanent injunction was decreed. On appeal, those findings were affirmed by the learned District Judge. - 4 - 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. A perusal of the record shows that the appeal was admitted by this Court on substantial question of law, which was as to whether the courts have failed to impart justice in the absence of framing of necessary issue regarding possession in spite of the fact that there are specific pleadings qua this issue. Thus, the appeal in question was admitted only on this substantial question of law in regard to non-framing of issue of possession and its effect. During the course of arguments, therefore, the learned counsel for the parties did not address their arguments in regard to the findings recorded by both the courts below holding the Will in favour of the plaintiff to be valid one and not relying upon the Will set up by defendants No.1 to 3 in their favour. 8. In regard to the non-framing of the issue in regard to possession, it was contended by the learned counsel for the appellants that the appellants had taken the plea in their written statement that they were in possession of the suit land, but, in spite of the said plea, no issue was framed by the learned trial Court in regard to possession. It was also submitted that during the course of arguments before the learned Appellate Court, the plea was taken, which facts stand substantiated from the grounds of appeal that the plea in regard to the non- framing of the issue about possession was taken but no findings were recorded by the learned Appellate Court in - 5 - that regard. Thus, it was submitted that the appeal deserves to be allowed and the case deserves to be remanded to the learned trial Court for framing of issue in regard to possession and giving its findings in that regard. 9. A perusal of the written statement filed by the defendants shows that a preliminary objection was taken in the written statement filed by defendants No.1 and 3 that the plaintiff is not in possession of the suit property and as such the suit for declaration and injunction is not maintainable. It was pleaded in para 11 that since the plaintiff is not in possession of the suit property and as such the suit was liable to be valued on the basis of market value. After the written statement was field by defendants No.1 and 3 dated 3.4.1996, the issues were framed by the learned trial Court on 22.11.1996 and the issue was framed as to whether the suit is not maintainable in the present from, as alleged and this issue was framed on the basis of the pleadings of the defendants that the plaintiff was not in possession of the suit land. However, no specific issue in regard to possession was framed or claimed at that time since it has been clearly mentioned that no other issue arises or claimed. Thereafter, the trial of the case had taken number of years and it was finally decided on 24.3.1999. There is nothing on the record to show that during the trial of the case, any application was filed by the defendants under Order 14 Rule 5 CPC claiming a specific issue in regard to - 6 - possession, though in my view, issue No.3 covered the pleadings of the defendants in that regard. 10. A perusal of the judgment passed by the learned District Judge shows that no specific ground was taken in the grounds of appeal filed before the learned District Judge that the issue in regard to possession was specifically claimed and was not framed by the learned trial Court. It was alleged that the respondent was not in possession of the suit property and as such the suit was liable to be valued on the basis of market value and other findings were challenged upon the Will but there is nothing on the record to show that the case deserves to be remanded for non-framing of the issue in regard to possession. There is nothing in the judgment of the learned District Judge to show that this specific plea was taken during the course of arguments or it was stressed in the grounds of appeal and as such no findings had been given in that regard. 11. In my view, issue No.3 in regard to maintainability clearly was based upon the pleadings of the defendants that the plaintiff was not in possession and as such no separate issue required to be framed before the learned trial Court and non-framing of such an issue has not prejudiced the case of the appellant in any manner. Once a party has not agitated before the learned trial Court for number of years in regard to non-framing of an issue and did not file any application in that regard, it is deemed that the issue even if arises from the pleadings is deemed to have been waived by the party. - 7 - 12. Therefore, I am of the opinion that no case is made out for the remand of the case on the ground of non-framing of issue in regard to possession in view of the above discussion and as such I hold that there is no merit in the appeal filed by the appellant, which his dismissed accordingly. However, the parties are left to bear their own costs. Oct.20, 2010. (V.K. Ahuja), (TILAK) Judge.