Ram Narain And Anr. vs Ram Kumar And Anr.
1991 Latest Caselaw 96 Del

JUDGMENT

P.N. Nag, J.

(1) This second appeal has been directed against the order dated 22nd August, 1987 passed by Shri S.M. Aggarwal, Additional District Judge, Delhi. In this appeal the appellants seek the reversal of the decree passed by the Courts below in favor of the plaintiff and against the defendants for possession of the ground floor of premises No. 925 situated at Gali Inderwali, Kucha Patiram, Bazar Sita Ram, Delhi.

(2) The case set up by the plaintiff-respondent No. I is that the plaintiff filed a suit for possession of the ground floor of the premises in dispute i.e. No. 925, Gali Inderwali, Kucha Patiram, Bazar Sita Ram, Delhi, on the ground that his father, Shri Babu Ram, was the tenant of a portion of the premises of Shri Sultan Singh, and after his death, his widow, -Smt. Kapuri Devi, and now defendant No. 3, Banarsi Dass, adopted son of Shri Sultan Singh. The plaintiff respondent No. 1, Ram Kumar, also has taken on rent from Sultan Singh, a Kothri at a monthly rent of Rs. 6.00 . Ram Narayan, defendant No. 2-appellant No. I, is the real brother of Ram Kumar, plaintiff-respondent No. I, who is occupying the Kothri and a portion of a hall as a licensee of plaintiff-respondent No. I, Ram Kumar. However, the license of Ram Narayan, appellant No. 1 was revoked but he failed to deliver the possession of the premises, namely Kothri and a portion of the hall. Ram Narayan, brother of plaintiff-respondent NO. I, and the son of Ram Narayan, ViJay Kumar in the written statement have set up their case that appellants 1 & 2 that after the death of Babu Ram, father of plaintiff-respondent No. I, and defendant No. 2, all his sons, namely Ram Bharose Lal, Ram Kumar, Prem Chand and Ram Narayan became the tenants as they inherited the tenancy rights and defendant No. 2 is the tenant in his own right. However, his brothers,, namely. Ram Bharose Lal and Prem Chand surrendered their tenancy rights. However, defendant No. 2-appellant No. 1 continued to be the tenant in his own right.

(3) On the pleadings of the parties, the following issues were framed j "1. Whether the defendant Nos. 1 & 2 are tenants in the premises in dispute as alleged in the written statement ? OPD. 2. Whether the suit is properly valued for the purposes of Court fees and jurisdiction? Opp 3. Relief."

(4) After the protracted trial, the learned Court decided these issues in favor of the plaintiff-respondent No. 1 and against the defendants and decreed the suit of the plaintiff on 19.2.1987. Being aggrieved against this order the appellant-respondent No. 1 filed an appeal before the learned Additional District Judge which was also dismissed on 22nd August, 1987. Against this order of the learned Additional District Judge, the appellant has filled the present appeal in this Court.

(5) During the course of hearing, learned counsel for the appellant. submits that proper issues have not been framed by the Court as it was clearly stated in the written statement that after the death of their father, they also inherited the tenancy rights from their father along with other sons and are occupying the premises in dispute in their own rights as Co-tenants. Unfortunately, such an issue has not been framed by the Court and omission to frame this issue, which has a material bearing on the merits of the case- and in fact goes to the root of the jurisdiction of the matter raises a substantial question of law and on this account, the judgment of the lower Court requires to be interfered with and the matter is required to be remanded to the trial Court for decision afresh in accordance with the law after framing a suitable issue in this regard. It is stated that no issue has been framed by the trial Court on the decision of which the suit of the plaintiff could have been decreed as the plaintiff must succeed in the suit if he establishes his exclusive and sole right of the premises in dispute.

(6) After hearing the learned counsel for the parties I find good deal of force in the submission of the learned counsel for the appellant that the Court has failed to frame suitable and proper issue whether or not respondent no. 1-plaintiff has inherited the sole and exclusive right of tenancy in respect of the premises after the death of his father and that whether he is entitled to the possession of the premises in dispute as such an issue does arise out of the pleadings of the parties and such an issue will have material bearing on the merits and decision of the case. Merely, the decision on the issues framed by trial Court in favor of the plaintiff and against the defendants cannot entitle the plaintiff for decree of possession as in order to succeed in the suit the plaintiff must prove his own right of possession in the premises in dispute on the basis of his own title to such possession. Under Order 14 Rule 3 the Court has to frame the issues if such issues arises out of the pleadings of the parties. Omission to frame such an issue which has material bearing on the decision on merits of the case and which goes to the root of the case, in my opinion, raises a substantial question of law and on this ground this Court can interfere in second appeal in the interest of justice. It is settled principle of law that the matter so long as the party does not give up an issue or abandon the point in issue, there is nothing to preclude a party from raising before a superior Court or even before the same Court the point of issue, if it arises out of the pleadings of the parties and has material bearing on the merits of the case. Therefore, having regard to all the circumstances it will be necessary to frame the following issues for adjudication by the trial Court and remand the case for fresh trial in accordance with law. "WHETHER the plaintiff solely and exclusively became the tenant of the premises in dispute after the death of his father Babu Ram and is entitled to the possession of the premises ?"

(7) In the light of this, the appeal succeeds, judgments of the Courts below are set aside and the matter is remanded for fresh trial under Order 41 Rule 23A on the issue framed above in accordance with the law. The parties shall bear their own costs. Since the case is a fairly old, it will be appreciated that if the case is decided expenditiously by the trial Court.

(8) It is not necessary to decide the other issues raised in this appeal as the appeal succeeds on this point alone.

(9) The parties are directed to appear before the Senior Sub Judge on 14th March, 1991. Records be sent back immediately. C.M. 291 of 1991

(10) Counsel for the petitioner has filed an application under Order 41 Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 for urging additional grounds in Court today. Let it be registered and numbered.

(11) Notice, Mr. Ishwar Sahai accept notice on behalf of the respondents.

(12) After hearing the parties, the 'application is allowed to be placed on record.