Narain Dass Mehan (Since ... vs Yashoda Devi (Since Deceased)
2023 Latest Caselaw 12752 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 176/2022 Decided on: 1.9.2023

Narain Dass Mehan (since deceased) ...Petitioner

.

through his legal representatives &ors.

Versus

Yashoda Devi (since deceased) ....Respondents through her legal representatives & ors.

Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No

For the petitioners: Mr. Neeraj Gupta, Sr. Advocate with r Mr. Ajeet Pal Singh Jaswal, Advocate.

For the respondents: Mr. Harish Chander Sharma, Advocate, for respondents No. 1(a) to 1(d).

Justice Tarlok Singh Chauhan (oral)

The predecessor-in-interest of the plaintiffs/

respondents had filed the suit for following reliefs:

"(i) plaintiff be declared absolute owner in possession of suit property comprised in Kh. 334 measuring 1440 sq. ft.

at 91 to 94 Lower Bazar Shimla, H.P.

(ii) mutation No. 774, dated 30.7.1977 be declared null and void and consequently revenue entries be directed to be corrected showing plaintiff as absolute owner of the suit land/property.

(iii) defendants be restrained permanently from claiming any rent from the tenants inducted in the suit property."

1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

2 It is on the basis of the pleadings of the parties that

the learned trial court on 19.10.2010 framed as many as 9

issues, which read as under:-

.

1. Whether the plaintiff is absolute owner in possession of the disputed property, as alleged?...OPP

2. Whether the plaintiff is entitled to the symbolic/actual

possession of the suit property, as prayed for ?

3. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction, as prayed for? ..OPP

4. Whether the suit of the plaintiff is time barred, as alleged? ...OPD

5. Whether the plaintiff has no cause of action to file the

present suit against the defendant, as alleged? ...OPD

6. Whether the plaintiff is estopped to file the present suit by her own acts, deeds, conduct and acquiescence etc., as alleged? ...OPD.

7. Whether the suit is not properly valued for the purpose of

court fees and jurisdiction, as alleged?...OPD

8. Whether the suit is bad for mis-joinder of parties, as

alleged? ...OPD.

9. Relief.

3 Evidently, there is no issue regarding declaration qua

the sale deed set up by the defendants.

4 Once that be so, obviously there is no question of

allowing the application filed by the plaintiffs/respondents herein

under Section 151 CPC and Section 73 read with Section 45 of

the Indian Evidence Act for sending the document (sale deed) to

handwriting expert for opinion.

5 If at all, the plaintiffs had any doubt regarding

.

correctness and veracity of the aforesaid sale deed, they would

have amended the plaint and assailed the same.

6 Having failed to do assail the same, they cannot be

indirectly permitted to assail the sale deed, more particularly,

when there is no issue framed to that effect.

7 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 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 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 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 distinct issue. The issues are framed and recorded on

.

which the decision of the case entirely depends. The evidence led

by the parties has to 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

it. 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.

8 To say the least, the learned trial court has exhibited

total ignorance to the factual as well as legal aspect of the matter

by not confining itself to the issues that were framed in the

instant case.

9 Consequently, order dated 18.5.2022 passed by the

learned trial court is set aside and the application filed by the

plaintiffs/respondents is ordered to be dismissed.

10 I am informed at the bar that the case has been listed

before the learned trial court on 2.9.2023. Since the suit pertains

to year 2008, the learned trial court is directed to fix the date of

hearing in the 3rd week of September, 2023 and make all

endeavours to decide the same as expeditiously as possible and

.

in no event later than 31.10.2023.

11 The petition is disposed of in the aforesaid terms, so

also the pending application(s), if any.

    1.9.2023                                (Tarlok Singh Chauhan)





         (pankaj)                                    Judge