@JUDGMENTTAG-ORDER
Dipak Misra, J.
The respondent, as plaintiff, initiated a civil action framiny subject matter of Civil Suit No. 85-A/2004 for declaration of right, title and interest in respect of the suit house bearing Municipal No. 595 (New No. 522) and for declaration of possession. A further prayer was made in the civil suit seeking a declaration that ''Hiba'' (deed of gift) dated 2.5.1978 executed by Haji Waheeduddin in favour of the present petitioner, the defendant in the suit, is illegal and not binding upon the respondent/plaintiff. In addition, there are other prayers in the suit. The learned trial Judge dismissed the suit of the respondent plaintiff by judgment dated 30th April 2002. Being aggrieved by and dissatisfied with the respondent/plaintiff preferred an appeal.
As the controversy that arises in this writ petition relates to framing of an additional issue, I think it condign to refer to the relevant issues that had been framed by the leaned Trial Judge specially relating to the controversy that has been agitated in appeal. It is worth noting, the learned Trial Judge has framed Issue No. 3 which was bifurcated into two parts. The major part of the controversy was founded on the substratum whether the deed of gift, the Hibanama, made in favour of the defendant/petitioner is a forged one. The defendant petitioner put forth his claim that his father had gifted the suit house to him and the said gift-deed was given to him and that he had all rights of ownership. It is put forth in the petition that during the pendency of the suit in the trial Court, an application was filed by the respondent/plaintiff under Order 14 Rule 5 CPC for framing an additional issue and accordingly Issue No. 7 was framed on 7.8.2004. The parties led evidence in accordance with the issue framed The learned trial Judge appreciating the evidence brought on record, dismissed the suit of the plaintiff. When the appeal was taken up for hearing, the Appellate Court after adverting to the assertions made in the plaint, the controversy raised by the defendant/petitioner in the writ petition and appreciating the material brought on record, was of the opinion that the two questions emerged for consideration in the appeal, namely, whether the finding of the Court of first instance as regards the execution of the gift-deed (Hiba) by late Haji Waheeduddin is correct? and whether the judgment rendered by the learned trial Judge is contrary to the evidence on record.
After stating the controversy that was required to be adjudicated by the Appellate Court, the learned Appellate Judge reproduced Issue No. 3-A (1) and 3-B (2) and then scanned the evidence on record. He noted the finding that the learned trial Judge has arrived at the conclusion that the defendant was inclined to mutate the house No. 595 in his name on the foundation of the gift-deed and on consideration of evidence adduced by the parties declined to declare the gift-deed, Exh.D12, as a forged one. The learned Appellate Judge, on further scrutiny, found that the suit property (House No. 595) belonged to deceased Haji Waheeduddin, the father of the plaintiff and the defendant. He also noted that there was no dispute that the oral gift was made 9 days prior to death of Haji Weheeduddin and that the evidence had not been adduced to prove the gift-deed. The Appellate Judge further opined that the Court of first instance had not framed any issue as regards the execution of the gift-deed by the father in favour of the defendant. What the Court below had done, according to the Appellate Court, is that he had declined to declare the Hiba (Exh. D12) as a forged one. The learned Appellate Judge further expressed the view that before declining to declare that the Hiba was not a forged one, there should have Deen advertence with regard to the oral gift in favour of the defendant. He was of the view that the oral-gift should have been proved in appropriate manner. He also noticed that as far as Exh.D12 was concerned, there was no signature of the doner. In this background, the appellate Court arrived at the conclusion that it had become necessitus that whether late Haji Waheeduddin had made an oral gift in favour of defendant Aminuddin. Because of this view, the learned lower Appellate Court framed an issue, namely, whether late Haji Waheeduddin had by oral gift, gifted the House No. 595 and put the defendant Aminuddin in possession. Being of this view he exercised the power vested in him under Order 41 Rule 25 of CPC and directed the learned trial Judge to record a finding after allowing the parties to adduce evidence and send it to the Appellate Court for hearing of the appeal.
I have heard Mr. Imtiyaz Hussain, learned counsel for the petitioner and Mr. V.K. Shrivastava learned counsel for the respondent. Submission of Mr. Imtiyaz Hussain is that the learned Appellate Judge has fallen into grave error by directing the Court of first instance to frame an additional issue and permit the parties to adduce evidence though the controversies that had come within the ambit and sweep of the said issue were within the domain the purview of the earlier issues and the parries knowing very well had entered into contest and, therefore, framing of an additional issue was not at all necessary or essential.
Mr. Shrivastava, learned counsel for the respondent resisting the aforesaid submission contended that certain issues were framed but if they are appreciated in proper perspective, it would be clear as a day that framing of an additional issue by the learned Appellate Judge in exercise of power under Order 41 Rule 25 of the CPC cannot be found fault with as that subserves the cause of justice and there is a subtle distinction between the issues that had been framed and the issue that has been framed by the learned Appellate Judge.
In the plaint, a prayer was made to declare the plaintiff/respondent as the owner in possession of the House No. 595 and the Hiba dated 2.5.1978 executed in vavour of the petitioner/defendant as invalid and declare that the defendant is in occupation of the portion of the suit house with permission. The further prayer was for restraining the defendant from alienating the suit house No. 595. As has already been stated, there are other prayers also. The stand of the plaintiff/respondent in the plaint is that Haji Hamiduddin was the owner in possession of the suit property and by an agreement dated 5.10.1967, the house came into the possession of the plaintiff. By an agreement dated 5.10.1967, Haji Waheeduddin gave the House No. 595, Sarafa Ward to his three sons Majiduddin, Alimuddin and Rafiquddin and the three brothers became owner in possession of the said house. Haji Majiduddin died a bachelor and consequently, other two brothers, namely, Alimuddin and Rafiquddin, became owners in possession of the House No. 595. It is pleaded that another house was purchased by their father in the name of third son Aminuddin. It was also the case that Alimuddin relinquished his share in House Nos. 595 after receipt of Rs. 25,000/- and left Jabalpur, as a result of which the plaintiff from the year 1970 is in continuous uninterrupted peaceful possession over the suit property. The defendant was given the permissive possession of the premises situated in the House No, 595. The defendant with a malafide intention tried to get the House No. 595 mutated in his own name in the records of Municipal Corporation Jabalpur on the basis of Hibanama dated 2.5.1978. The plaintiff objected to the mutation and eventually as the cavil ensued, the present suit was filed.
In the written statement, it was pleaded that Haji Waheeduddin never gifted House No. 595 to his sons Majiduddin, Alimuddin and Rafiquddin. It is also pleaded that the fact of ownership of the defendant was also admitted by the father of the defendant in reply field by him in Case No. 30-A/90(4) 76-77 before the Rent Controlling Authority, Jabalpur on 29th July 1977. It is categorically put forth that the House No. 595 had already been gifted to the defendant by his father. The permissive possession was also controverted. It was unequivocally stated that the defendant was residing in the house as owner and landlord on the basis of gift made by his father in his favour. The creation of Hiba on 2.5.1978, nine days prior to the death of his father, is disputed. It is urged that the Hiba was created on 2.5.1978 while his father was quite hale and hearty and was in full sense. It is put forth that there was no prayer for recovery of possession of the House.
In view of the pleadings and in view of the issues framed, the question that arises for consideration is whether the framing of an additional issue and calling for a finding was essential. The issues that have been initially framed, when translated in English would read as under.
3(a) (1) Whether the defendant desired to mutate his name on House No. 595 Sarafa Ward on the basis of Hibanama dated 2.5.1978? and
3(b) (2) Whether the aforesaid Hibanama (Deed of Gift) is forged one?
The additional issue that had been framed reads as under:
Where Haji Waheeduddin by orally gifting house No. 595 had put the defendant Amimuddin into possession thereof?
The purpose of framing an issue was dealt with by Apex Court, though in a proceeding under the Representation of People Act, 1951 in the case of Makhan Lal Bangal vs. Manas Bhunia and others (2001 SAR [Civil] 268). The same is of immense guidance to the case at hand. It is observed by the Apex Court as under:
...The stage of framing the issues is an important one inasmuch 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 there from. 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 concave 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 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 other. Each material proposition affirmed by one party and denied by other should from the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or law on which the parties are at variance. The issue 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 belittle 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 issue 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 be 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 judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided.
At the juncture, I may refer will profile to the decision rendered in the case
Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on the narrow ground and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.
The obtaining factual matrix has to be decided on the anvil of aforesaid pronouncement of law. The two issues that had been framed by the learned Trial Judge, in my considered opinion, covered the entire gamut of controversy. Both the issues when appreciated in proper perspective would make it clear as crystal that parties were well aware about the controversy and had gone to trial knowing fully well their rival stands. As has been held in the case of Makhan Lal Bangal (supra), the controversy was narrowed down and pin-pointed. The parties were well aware about the quintessential nature of issues, their stand and stands and had adduced evidence. It is not a case that the controversy was not known and something had been projected beyond the record. On the contrary, it is evincible parties had adduced evidence on this core and the learned Trial Judge had recorded the findings about the nature and character of the gift-deed. The dispute was well known to the parties. The learned Appellate Judge had expressed the opinion that there should have been advertence with regard to oral gift in favour of the defendant/petitioner. He had expressed some doubts about Exh.D.12. That is not to be determined by this Court in writ petition. That is within the purview and scope of the learned Appellate Judge. I am disposed to think that there was sufficient material on record and evidence to decide the case without remitting the matter for framing of an additional issue and return a finding. Needless to emphasise, the Trial Court is definitely and indubitably at liberty to offer the views about the nature and character, and manner and method and execution of gift-deed and whether it is hit by any principle of law including that fraud was taken recourse to.
In view of my preceding analysis, I am of the considered opinion, the impugned order does not withstand close scrutiny and accordingly the same is quashed. The learned lower appellate Judge would do well to proceed with the appeal and dispose of the same by end of September, 2005. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.
