- (1.) HEARD learned counsel for appellants.
(2.) THIS is a plaintiffs' second appeal arising out of suit for injunction filed by plaintiffs-respondent as Suit No.165 of 2004 dated 28.8.2010 and appeal filed by defendants-appellants has been dismissed. The facts arising out of suit are that plaintiffs-respondents filed a suit for injunction restraining defendants-appellants from interfering in Gata No.106 measuring about 0.395 hectares on the ground that they are in possession of the said land. This property was initially of one Nandram S/o Churamani before consolidation. As he was having four daughters and after his death, plaintiff No.1 and defendant No.2 became the owners in possession, Smt. Asarfi Devi has executed a sale deed in favour of plaintiff No.1 and 2 by registered sale deed and therefore, the plaintiff No.2 has become the owner of 1/4th share. The name has also been recorded in the revenue record towards the west Plot No.89 and Plot No.88 belonging to defendant and towards east plot No.105. As some land has been inherited, therefore, defendants-appellants are having enmity and forcibly wanted to take possession of the land in dispute, therefore, the present suit has been filed. After filing written statement various issues were framed and one of the issues was regarding the fact whether plaintiff is the owner in possession of Plot No.106. Upon consideration of Issue No.1 and upon pleadings of parties, the trial court on the basis of admission made by the defendants that it is an admitted case that plot No.106 belongs to plaintiffs and plot No.88 belongs to defendants. Though the parties admitted that there is no dispute to this effect that Plot no.106 belongs to plaintiffs but in the garb of the said plot they wanted to take possession of plot No.88 which belongs to defendants. Trial Court after considering the evidence on record and after consideration of the statement of the witness that Puspa Devi and Saraswati Devi have not included any portion of the land of Plot No.88 and subsequently they said that this has been included. The statement given by DW-2 clearly states that he has seen the site on spot and number of that is 106 purchased by Puspa Devi and Saraswati Devi-plaintiffs and they are in possession of the said land. Further finding has been recorded that in the earlier suit filed by defendants being Suit No.422 of 2004, the map filed by plaintiffs itself shows the boundary but now in the present suit they want to change of the nature of their stand which clearly goes to show the contradiction and cannot be believed. Further finding has been recorded that in Suit No.422 of 2004, the plaintiffs himself in the map has submitted that Plot No.106 belongs to plaintiffs is in the east of their Plot No.88. Therefore, now in this present case, plaintiffs cannot change the stand that it belongs to another direction. Trial Court after considering all relevant issues was pleased to decree the suit restraining defendants from interfering in the plot No.106 in peaceful possession of plaintiffs-respondents. Appeal filed by defendants-appellants has also been dismissed after confirming the finding recorded by Trial Court.
(3.) LEARNED counsel for appellant submits that proper issues as submitted were not framed, therefore, in view of Apex Court judgement reported in AIR, 2001 Supreme Court, 490, Makhan Lal Bangal, Appellant v.Manas Bhunia and others it was the duty of the Court to have framed proper issues to that effect. He has placed reliance upon para 19 of the said judgment. The same is being quoted below:- "19. An election petition is like a civil trial. The stage of framing the issues is an important one in as much as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the conclave mirror held by the Court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if nay, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. the parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not be little the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. the petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies, not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The Judgement, then proceeding issue-wise would be able to tell precisely how the dispute was decided." Other various judgements have also been cited by learned counsel for appellants that are being reproduced below:- 1) 2008(3) ARC522 K.V.Rami Reddi Vs. Prema "14. In Balraj Taneja and another v. Sunil Madan and another, 1999 (8) SCC 396 : 2000 SCFBRC96, it was inter alia held as follows: "There is yet another infirmity in the case which relates to the "judgment" passed by the single Judge and upheld by the Division Bench. "Judgement" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order XX, Rule 4(2) which says that a judgment " shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision." It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgement." 2) 2006(1) ARC 865 G.Amalorpavam and others Vs. R.C.Diocese of Madaurai and others "8. Order XLI, Rule 31 reads as follows: "Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state - (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 9. The question whether in a particular case there has been a substantial compliance with the provisions of Order XLI, Rule 31, CPC has to be determined on the nature of the judgement delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void and may be ignored if there has been substantial compliance with it and the Second Appellate Court is in a position to ascertain the findings of the Lower Appellate Court. It is no doubt desirable that the Appellate Court should comply with all the requirements of Order XLI, Rule 31, CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered that would be sufficient. Where the Appellate Court has consdiered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the Appellate Court there is substantial compliance with the provisions of Order XLI, Rule 31, CPC and the judgement is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the Lower Appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower Appellate Court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the Appellate Court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity is understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100, CPC." 3) AIR 2008 Supreme Court 938 Union of India and Anr. Vs. Ranchod and Ors. In para 7 of the said judgement, the Supreme Court has observed as follows:- "The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. the appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girja Nandini Devi v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it." 4) 2000 Supreme court and Full Bench Rent Cases, Balraj Taneja and another Vs. Sunil Madan and another "40-A. "Judgment" as defined in Section 2 (9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order XX, Rule 4(2) which says that a judgment: "Shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision." It should be self-contained documents from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment." 5) 2008(1) ARC 131, Suresha Devi (Km.) Vs. Bhagwan Das and another I have considered the submissions of the appellant and perused the record. ;