Pushpa Devi And Others vs Jagul Kishore And Others
2021 Latest Caselaw 781 j&K

Citation : 2021 Latest Caselaw 781 j&K
Judgement Date : 30 July, 2021

Jammu & Kashmir High Court

Pushpa Devi And Others vs Jagul Kishore And Others on 30 July, 2021

                                                          Sr. No. J-1

            HIGH COURT OF JAMMU & KASHMIR AND LAKAKH
                        AT JAMMU

                                          Reserved on : 14.07.2021
                                         Pronounced on : 30 .07.2021

                                      CSA No. 20/2012
                                      IA Nos. 29/2012 & 39/2013
                                      IA No.99001/2013 [D-60/2013]

Pushpa Devi and others

                                                       ....Appellant (s)


                            Through: - Mr. A. K. Sharma, Advocate
            v/s


Jagul Kishore and others

                                                       .... Respondent(s)
                           Through: - None
.


Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                 ORDER

1. The instant Civil Second Appeal is directed against the judgment

and decree dated 31.05.2012 (for brevity 'impugned judgment and decree')

passed by the learned Additional District Judge, Udhampur ( for brevity

'appellant Court') in File No. 28/Appeal.

2. Before adverting to the contentions raised and grounds urged in

the instant appeal, a brief background of the case as stated in the memo of

appeal is outlined hereunder:-

2 CSA 20/2012

3. The appellants contend to have filed a suit for partition by metes

and bounds of the property of one late Hem Raj son of Kali Dass being

husband of the appellant No. 1 and father of the appellants Nos. 2 to 5 herein

comprising of a double storeyed house existing on land measuring 28 sarsai

(approximately 4 marlas) covered under Khasra No.100 and 597/317/413/101

situated at Barrian, Ward No. 2, Udhampur. In the said suit a permanent

prohibitory injunction also is stated to have been prayed for restraining the

respondents herein from changing the nature of the existing building and from

dispossessing the appellants herein from the said house under their

occupation.

4. According to the appellants, Khasra No. 100 measuring 02

marlas as per the revenue record is recorded in the name of Kali Dass being

the grandfather of the appellants 2 to 5 herein. As per the mutation No. 1273

attested on 30.11.2001, 06 marlas of land comprising under Khasra Nos.

597/417/413/101 had been carved out of the said Khasra numbers and

recorded in the name of the appellants and respondents by way of a mutation

of actual physical possession.

5. According to the appellants as per the revenue entries 02 marlas

of land is recorded being under the occupation of shops owned by Kali Dass

the grandfather of the appellants and respondents and 06 marlas of land is

owned by Ram Saran brother of Kali Dass. Ram Saran and Kali Dass are

stated to be the sons of one Daya Ram and the said 06 marlas of land are

stated to have been given free of cost by Ram Saran and others to Kali Dass

who is stated to have constructed a kacha house thereon on the said land. It is

stated that Kali Dass had two sons, namely, Hem Raj and Rattan Lal who are

stated to have made an oral family arrangements as a result of which 28 sarsai 3 CSA 20/2012

of land was given to Hem Raj and remaining land out of 08 marlas to their

son, namely, Rattan Lal. Rattan Lal is stated to have constructed his house on

his share of land whereas Hem Raj is stated to have remained in occupation of

28 sarsai of land which is stated to be the subject matter of present litigation.

6. According to the appellants they are putting up in the house along

with the respondents constructed by their grandfather Hem Raj out of which

the appellants are stated to have been given only one Kacha room and rest of

the property is stated to be occupied by the respondents. According, to the

appellants partition of the said property by metes and bounds was sought in

the above suit filed by them in response whereof the respondents are stated to

have filed written statements.

7. According to the appellants the trial court framed five issues in

the suit and on the basis of evidence led all issues were held to have been

proved by the appellants onus whereof had been placed on them and

consequently, a judgment and preliminary decree dated 14.11.2007 is stated to

have been passed to the extent of 1/13th share each directing partition of the

suit property to the extent of 1/13th share by appointing a Commissioner to

carry out the partition between the parties. According to the appellants an

appeal was filed against the judgment and decree dated 14.11.2007 by the

respondents herein and the said judgment and decree in question came to be

set aside by the appellate Court vide impugned judgment and decree.

8. According to the appellants, the judgment and decree dated

14.11.2007 came to be reversed by the appellate Court on the premise that the

appellants herein failed to prove title of late Hem Raj with respect to the

property in question. The impugned judgment and decree is being questioned

primarily on the ground that neither before the trial court nor the appellate 4 CSA 20/2012

Court, the respondents had taken a stand that late Hem Raj the predecessor-

in-interest of the parties had no title in the suit property.

9. The appellants herein have framed following questions as

substantial questions of law of greater public importance in the memo of

appeal:-

(i) As to whether the learned first appellate court was legally justified in setting aside the judgment and decree of the learned trial court and dismissing the suit of the appellants on the ground of title in suit property when such an issue was neither framed by the learned trial court in respect of predecessor-interest of parties nor otherwise agitated the matter before the learned trial court by respondents.

(ii) As to whether the question of title in suit property can be adjudicated upon by the first appellate court when the respondents have not questioned the title of late Hem Raj the predecessor-in-interest of parties in the suit prpoperty before the learned trial court.

(iii) As to whether the appellants can be deprived of their share in the suit property on the ground of title when the suit property is ancestral one and reflected in the revenue records.

10. Heard learned counsel for the appellant and perused the

record.

11. The position of law is no more res intergria that a question/ issue

which did not raise from the pleadings and which was not subject matter of an

issue cannot be decided by a Court. The Court cannot make out a case not

pleaded.

5 CSA 20/2012

12. Having regard o the submissions made by learned counsel for the

appellants and upon perusal of the record following substantial question of

law emerge for consideration in the instant appeal.

(i) Whether the appellate Court while reversing the judgment and

decree dated 14.11.2007 passed by the trial court legally