Ganesha and Others vs Gharsi Ram and Others

R.L. Anand, J.—This is a second appeal against order and has been directed against the order dated 3.5.1997 passed by Additional District Judge, Sirsa, who allowed the appeal of the defendants and set aside the judgment and decree dated 16.1.1993 passed by the trial Court. 2. Some facts can be noticed as follows:-

Plaintiff Surja Ram, deceased, represented by his L.Rs., and others filed a suit for declaration and joint possession against the State of Haryana and private defendants. Defendant No.2 was the contesting defendant and the other defendants were proforma. The suit was contested by the defendants and they also took a specific plea that they have become the owner of the property by way of adverse possession. Though the trial Court framed many issues running from issue No. 1 to 18, but a specific issue with regard to adverse possession could not be framed by the trial Court. The parties were allowed to lead evidence. When the suit was at the arguments stage, the plaintiffs made an application under Order 23 Rule 1 C.P.C. for the withdrawal of suit against the State of Haryana. Their request was allowed and the suit was decreed.

Aggrieved by the judgment and decree of the trial Court the defendants went in appeal and when the appeal was being argued before the first Appellant Court, it came to the conclusion that the trial Court did not frame a specific issue with regard to the adverse possession and, therefore, a prejudice has been caused to the defendants, as a result of which the entire judgment and decree dated 16.1.1993 was set aside and the parties were directed to appear before the trial Court on a particular date.

This time the plaintiffs are aggrieved by the order dated 3.5.1997 passed by the first Appellate Court.

I have heard Mr. S.C. Kapoor, Senior Advocate, on behalf of the appellant, Mr. Gorakh Nath, Advocate, on behalf of the respondents and after hearing the learned counsel for the parties, I am of the opinion that the order dated 3.5.1997 requires to be modified. It was not obligatory on the part of the Court or the plaintiffs to give notice to the contesting defendant No. 2 when the plaintiffs who were the masters of their cause of action wanted to withdraw the suit against the State of Haryana under Order 23, Rule 1 C.P.C. Had the plaintiffs wanted to withdraw the suit under Order 23 Rule 3,.C.P.C. such a notice might have been required to defendant No.2.

The learned counsel appearing on behalf of the appellants submitted that with regard to the specific issue of adverse possession the reasons given by the first Appellate Court are not sound because the defendants have led evidence under issue No. 1 knowing the case of the plaintiffs that they are claiming the ownership of the property and if the plea of adverse possession was taken in defence, the plaintiffs have been given the opportunity to lead evidence to rebut issue No.1. On the contrary, the learned counsel for the respondents submits that the specific plea was taken, therefore, it was obligatory on the part of the trial Court to frame a specific issue with regard to adverse possession.

I subscribe to the argument raised by Mr. Gorakh Nath that it was the duty of the trial Court to frame all the issues on the question of law and facts. The plea of adverse possession had been taken by the defendants. The onus was on the defendants to prove this issue and, therefore, a specific issue ought to have been framed by the trial Court whether the defendant No.2 has become the owner of the property in dispute by way of adverse possession or not. The learned counsel for the appellants then submitted that even if it is assumed for the sake of arguments that the first Appellate Court felt proper for the framing of a specific issue with regard to the adverse possession, the proper mode on the part of the first Appellate Court was to frame a specific issue with regard to adverse possession and call upon the parties to lead evidence before it or at the most could re-call for the report under Order 41 Rule 25 C.P.C. The counsel for the appellants submitted that there was hardly any occasion for setting aside the entire judgment and decree dated 16.1.1993 because this decree could only be set aside, if the first Appellate Court gives findings on all the issues and further declares that a re-trial is necessary. 1 subscribe to this argument of the learned counsel for the appellants and I am of the considered opinion that the first Appellate Court was not right when it set aside the entire judgment and decree dated 16.1.1993. To that extent, therefore, the order dated 3.5.1997 stands modified and it is hereby declared that the judgment and decree dated 16.1.1993 shall remain intact and shall not be deemed to have been disturbed by the order dated 3.5.1997. Directions are also given to the Additional District Judge, Sirsa to re-admit the appeal to its original number; frame a specific issue whether the defendant No,2 has become the owner of the property in dispute by way of adverse possession as pleaded by him; either to record the evidence at its own level on the said additional issue or call for the report from the trial Court on that issue and to dispose of the appeal according to law and on merits.

It is also made clear that the suit of the plaintiffs shall be deemed to have been dismissed against the State of Haryana for all intents and purposes and the name of State of Haryana shall stand deleted from the memo of parties.

Parties through their counsel are directed to appear before the first Appellate Court on 25.10.1999.

Copy Dasti to both the parties. Ore copy of the order be sent to Additional District Judge, Sirsa for compliance.