AI Structured Summary
Not yet generated for this judgment
Judgment
The parties are litigating for the last more than three decades over a land situated at village Matta Kishtwar. The dispute in the present case
relates to the land comprised in survey No.1756 measuring 10 marlas situated in village Matta, Kishtwar, which the appellants claim to have
purchased in exchange with one Naib Chand. The appellantsplaintiffs alleged that in pursuance of the Exchange Deed, the possession of the land
was handed over to them, but they were dispossessed by the defendantsrespondents from the said piece of land somewhere in the year 1973.
Resultantly, the effect of this was that a civil suit came to be filed before the learned Sub Judge, Kishtwar.
The claim of the appellants is that by virtue of an Exchange Deed they acquired the ownership of ten marlas of land comprised in survey No.
1756 situated in village Matta, Kishtwar. Initially the suit was for permanent prohibitory injunction, but in view of the intervening circumstances, it
was amended and claim for possession was made. The trial court after framing issues, allowed the suit of the plaintiffsappellants. The finding of the
trial court was based upon the Exchange Deed, executed by Naib Chand with the appellantsplaintiffs for ten marlas of land. The appellantsplaintiffs
had acquired the ownership right over the said property. With respect to issue no.2 the trial court has held that the appellantsplaintiffs were in
possession of the property immediately after the Exchange Deed was executed but they were dispossessed by the respondentsdefendants. The
trial court held that the appellants be put in possession of the property and consequently decreed the suit for recovery of possession of the said
land.
The respondentsdefendants being aggrieved of the order dated 27.02.2003 of learned Sub Judge, Kishtwar preferred an appeal before the
learned Additional District Judge, Kishtwar, who vide order dated 12.05.2005 set aside the findings of the trial court on the following grounds:
(a) That admittedly property in question was in joint ownership of Naib Chand and contesting respondents. Since there was no document or
evidence to suggest that the said property was partitioned, the coowner Naib Chand could not have sold the property in exchange to the
appellantsplaintiffs;
(b) That after having stated that the property was jointly owned by the respondentsdefendants with Naib Chand as coowner, no relief of injunction
could be claimed against the coowner.
The appellate court held that the possession of the coowner would not be deemed to be ouster of other coowner. It is a well settled principle of
law that the coowner in possession would become the constructive trustee on behalf of the cosharer who is not in possession and the right of such
coowner would be deemed to be protected by the trustee. As a result of this, the appellate court accepted the appeal of the
respondentsdefendants and dismissed the suit of the appellantsplaintiffs vide order dated 12.05.2005. It is under these circumstances, the present
appeal has been preferred by the appellantsplaintiffs.
I have heard learned counsel for the parties and perused the record.
Mr. Wazir, learned counsel appearing for the appellantsplaintiffs has framed five substantial questions of law, which according to him are
required to be determined by this court in the present appeal.
On the other hand, Mr. Raina, learned counsel for the respondentsdefendants stated that the power of the court to intervene in the present
appeal is confined only to a question which is substantial in law and not otherwise.
In order to appreciate the rival contentions of learned counsel for the parties, it is important to deal with the facts of the case.
It is not in dispute that Exchange Deed was executed by the appellantsplaintiffs with one Naib Chand who is said to be coowner with
defendantsrespondents 1 to 4. It has come on record that on the basis of the Exchange Deed, the appellantsplaintiffs were put in possession
somewhere in the year 1972 and they continued to remain in possession till the year 1973 when they were dispossessed by the
respondentsdefendants.
The question required to be determined is ""whether the property in dispute was owned by Naib Chand with the contesting
plaintiffsrespondents 1 to 4 being coowners in the said property"", and ""whether Naib Chand could have exchanged this land with the plaintiffs
appellants when property was not partitioned"".
With respect to the first contention, it has come in evidence that the Exchange Deed was executed by Naib Chand with the appellantsplaintiffs
in respect of the land measuring 10 marlas comprised in Survey No.1756 situated in village Matta, Kishtwar. The revenue record reveals that the
said land is being jointly owned by Naib Chand along with coowners and the partition of the property was not recorded in the revenue records.
Even though, it has come on record that the appellantsplaintiffs after execution of the Exchange Deed were put in possession of the property and
remained as such for some times. In order to establish their right on the said property, the plaintiffsappellants were required to prove (i) that Naib
Chand had perfect title and authority to transfer the same; and (ii) that the property purchased in exchange was in exclusive possession of the
seller/vendor. The appellantsplaintiffs though have been able to prove that Naib Chand had title over the property but only as a cosharer/coowner
and, thus, his capacity to transfer the land to the exclusion of the other coowners was restricted. The court below had discussed the evidence
adduced by the parties in this respect. None cr Ihe witnesses produced by the appellantsplaintiffs have stated or suggested that the property in
question was partitioned. It has come on record from the statement of the appellantsplaintiffs that the property was jointly owned by Naib Chand
as a coowner with the contesting respondents/defendants. Unless the appellantsplaintiffs prove that Naib Chand had perfect title over the land, his
claim to be declared as owner of the same on the basis of the Exchange Deed cannot be sustained. Mr. Wazir, learned counsel for
appellantsplaintiffs has further contended that the issue with regard to the property being as jointly owned by the contesting respondents and Naib
Chand has not been framed. There is no dispute with respect to the fact that no issue has been framed by the trial court regarding the joint
ownership of the land. The appellate court was under an obligation to frame the issue in this respect and decide the case as such.
The question would arise whether appellate court could have dismissed the suit of the appellantsplaintiffs without framing the issue as to
whether the property was jointly owned by the contesting respondents with one Naib Chand. There is no doubt that the court has to return the
findings only after the issues were framed. The object is to ensure that the parties are given sufficient chance to prove by evidence the case set up
by them. It is not possible for a party to prove its case unless the issue to that respect is framed by the court below.
This is not absolute truth. Under Order 41 Rule 24 CPC, the appellate court has the power to return the findings if there is sufficient evidence on
record regarding the matter which is being disputed by the parties.
In the present case, it has come on record that the property is being jointly owned by Naib Chand and the contesting respondents. As a matter
of fact, the witnesses produced by the appellantsplaintiffs including Patwari concerned admitted that the property was recorded in the joint
ownership of Naib Chand and contesting respondents. So in my opinion, there is no requirement for framing additional issue regarding
coownership of the land. The parties were aware of their case during the course of the trial and the respondentsdefendants have specifically raised
this issue that the property was jointly owned by Naib Chand with contesting respondents. I do not find any force in the arguments articulated by
the learned counsel for the appellantsplaintiffs.
The next question raised by the learned counsel for appellantsplaintiffs is with respect to issues 1 and 3. The contention of the
appellantsplaintiffs is that the contesting respondents had conceded these issues in civil revision filed before this court. It is pertinent to mention that
issues 1 and 3 were decided by the trial court before a final decree was passed. Against these issues, a revision was preferred by the contesting
respondents before this Court, who with the consensus of the learned counsel for the parties directed the trial court to decide the issues afresh and
pass appropriate orders thereafter. This is being construed by the learned counsel for the appellantsplaintiffs as acceptance of determination of
issues 1 and 3 by contesting respondents. The argument is misconceived. A party can question such an order only after the decree is passed by the
trial court. Right to challenge the decree would arise after the decree is passed and not before that. Merely because issues 1 and 3 came to be
decided by the trial court before the final decree is passed would not stop the contesting respondents to challenge the same in the final decree.
Mr. Wazir, learned counsel for the appellantsplaintiffs has relied upon judgments Girdhari Lal Vs. Thoru and another reported in 1992 KLJ
711, Khatoon Magray and others reported in 2005 (2) JKJ 210 (HC), Raju and another Vs. Muthuammal and others reported in AIR 2004
Madras 134 and State of Rajasthan Vs. Harphool Singh through his LRs reported in 2000(5) SCC 652.
On the other hand, Mr. Raina, learned counsel for the respondentsdefendants has relied upon the judgment Kondiba Dagadu Kadam Vs.
Savitribai Sopan Gujjar and others reported in AIR 1999 SC 2213.
I have perused the judgments relied upon by Mr. Wazir, learned counsel for the appellantsplaintiffs. The import of these judgments does not
cover the case in hand. Mr. Wazir has emphasized that the trial court has proceeded to decide the case without framing the issue with regard to
joint ownership. He has also stated that there is no determination made by the trial court as required under Order 41 Rule 31 CPC. The import of
the judgments does not cover the case on hand. As already discussed hereinabove, framing of additional issue was not required as parties had
already led the evidence on this question before the trial court even though no issue was framed. Hence, these judgments are not applicable in the
case on hand.
On the other hand, I have also perused the judgment relied upon by Mr. Raina, learned counsel for the respondentsdefendants. Mr. Raina has
stated that no substantial question of law is involved in this appeal which is required to be determined by this court. He has stated that all the
questions raised by the appellantsplaintiffs, more particularly the question that the appellate court without framing issue on the coowner has decided
the case, would not be substantial question of law, mainly when there is sufficient evidence on record that the property is jointly owned by the
contesting respondents with Naib Chand.
In view of the above, there is no force in this appeal, which is, accordingly, dismissed along with connected CMP(s), if any.