D L SIDDAPPA Vs. ABDUL SATTAR SAB

JUDGEMENT

(1.) ADMIT, on the joint request made Heard the learned Counsel for the appellant-Sri. D. R. Rajashekarappa as well as Sri M. V. Hiremath, appearing for all the respondents.

(2.) THE only point that has been urged in this second appeal is that the Courts below acted illegally and committed substantial error of law in dismissing the plaintiff's suit on the ground that identity of the land has not been established and without framing any issue on the point relating to identity of land. In reply to these contentions, the learned Counsel for the respondents urged that there was a plea in the written statement of the defendants to the effect that number and the boundaries of the land indicated are all incorrect. So, burden was on the plaintiff to establish the identity of the land and the boundaries. The plea might have been there. It could be said the plea was there, but no issue was pressed, and plea was vague. Anyway, if that question had to be decided and was in dispute between the parties as per the provisions of order 14 Rule 1 (3)of the Code of Civil Procedure, for short, the 'code'. Order 14 Rule 1 sub-rule (3) provides that the material proposition confirmed by one party and denied by the other shall form the subject of a distinct issue. In view of this provision, when the plaintiff had given and stated the number and the boundaries of the plot or property in dispute and defendant had denied and alleged that number and boundaries given are all incorrect, the trial Court should have framed an issue about identity and the number of the plot in dispute as to whether the property in dispute did bear number and the boundaries as alleged in the plaint, if not its effect. No such issue appears to have been framed, so as to indicate the boundaries, but the appellants suit has been dismissed, on this very ground. The learned counsel for the respondent submitted that issue No. 3, which had been framed by the trial Court read and has been to the effect: does he further prove the alleged obstructions by the defendants and if covers the question of identity of the property in dispute? i am unable to accept this contention. Failure to frame the issue having resulted in miscarriage of justice in the sense that the plaintiff had no opportunity to lead proper evidence or get the commission issued to get the land in dispute identified and the Appellate Court having rejected his application for commission which was moved at the appellate stage. In my opinion, both the Courts below committed error of law of substantial nature in dismissing the suit and the plaintiff's appeal. If the trial Court did not frame the issue, it was the duty of the Lower Appellate Court to have looked into this matter for the identity of the land, to have framed the issue and recorded a finding after recording necessary evidence or could have framed the issue and remitted the issue for finding after the recording of additional evidence by trial Court as the trial of the case had proceeded without framing of the proper and necessary issue arising from the pleadings and as the trial Court had failed to perform its duty according to law as provided under Order 14 Rule 1 Sub-Rule 3. Trial and decision of suit without frame proper and necessary issues by court vitiates the proceedings amounting to error of law of substantial nature causing material prejudice. See Lakshmi bai v. Kashi Bai. Thus considered in my opinion, the decision of the Judgment and decree of the Appellate Court which has confirmed the trial Court's decree, can be said to suffer from substantial error of law and as such, the Second Appeal deserves to be allowed. The Judgment and decree of the Courts below dismissing the plaintiff's suit are hereby set aside. The suit, namely, suit O. S. No. 68/ 80, is hereby restored and it is being remanded to the trial Court for decision afresh after framing the issue with respect to identity of the land in the context of the plaint allegations and the allegations in the written statement and the observations made by me in this judgment earlier. It will be open to the trial court to allow the parties to produce necessary evidence (oral or documentary) including survey report etc.

(3.) AS the suit is old one of 1980, the trial court is directed to decide this case expeditiously in any case, within 6 months from the date of communication of this order. Appeal allowed.