SOWARNO DEVI Vs. TILAK RAM

JUDGEMENT

(1.) This judgment will dispose of the present appeal, as also the connected Regular Second Appeal No. 1009 of 1971 between the same parties and arising out of the common judgments recorded by both the Courts below. The facts may be briefly noticed. Shrimati Sowarno Devi appellant is one of the seven children of Parma Nand, who had died on July 28, 1962. She filed two separate suits which were tried by the Court of Subordinate Judge First Class, Pathankot, after consolidating both of them. The case of the plaintiff-appellant, in substance, is that she being the daughter of Parma Nand deceased, is entitled to 1/8th share in the whole of the estate left by the deceased. Earlier to the filing of the preset two suits, the six children and the widow of Parma Nand, after his death, filed a suit against the Punjab National Bank Ltd., and the National Bank Lahore Ltd., for a declaration that they were entitled to receive rent of the buildings occupied by the said Banks. The appellant who was arrayed as a plaintiff in that suit, made a prayer for being transplanted as a defendant, as she wanted to resist the claim of her brothers and sisters and she was transferred as a defendant in the said case. It appears that the parties came to a compromise in that case, and as per the case of the respondents, the appellant gave up her interests and rights in the estate of the deceased in lieu of a sum of Rs. 4,000/- which was to be paid to her by January 14, 1965. It transpires that the original compromise as also the decree-sheet drawn in that case were lost. The appellant claimed that she had obtained a certified copy of the compromise from the Court before the loss of the original document, the certified copy being Mark 'A'. On the other hand, the respondents relied upon a carbon copy of the said compromise produced in Court as Exhibit LCD 2. This copy does not, of course, contain the signatures of anybody, but has been relied upon as a document prepared in the same process as the original. The bone of contention in the litigation is as to whether the appellant had relinquished all her rights and interests in the property of her deceased father in lieu of Rs. 4,000/-, and whether this amount had been received by her in consequence of the compromise. The trial Court framed a number of issues separately in the two suits and after the consolidation of the suits, dismissed both the suits. Two separate appeals filed against the decision of the trial Court, were also dismissed by Additional District Judge, Gurdaspur. The present two Regular Second Appeals have now been filed, with a view to impugn the aforesaid decisions.

(2.) One of the objections in regard to the compromise relied upon by the respondents, as raised before the trial Court and also before the lower appellate Court, is that the said compromise had not been registered as required under the law and in the absence of registration, the document which pertains to alienation of immovable property, was inadmissible in evidence. The lower appellate Court while considering this aspect of the matter, held that the document was indeed inadmissible in view of the objection regarding its non-registration, but it went further to hold that as the contract contained in the document had been performed, in that the respondents had paid the amount of Rs. 4,000/- to the appellant, it would tantamount to part-performance of the contract which, in turn, would nullify the objection regarding non-registration. During the course of the arguments in these appeals, it was rightly contended on behalf of the appellant that the lower appellate Court had recorded a finding on a point which was not the subject matter of any issue framed in either of the two suits. After hearing the learned counsel for the parties at considerable length, I find that the contention aforesaid is indeed tenable. It is well-settled that the Court cannot build up a case of its own in favour or against any party when the point is not the subject matter of the issues framed in the case. It is also material to note here that the trial Court did not record any finding in suit No. 228 on issues Nos. 4, 6, 10 and 11, on the ground that the suit had to be dismissed as a result of the findings on other issues. Accordingly, the appellant was deprived of the opportunity to contest these issues even before the lower appellate Court. In these circumstances, the suits as also the appeals filed by the appellant before the lower appellate Court ought not to have been dismissed solely on a point which was not in issue. The only proper course in such a situation would, thus, be to frame an additional issue in one of the suits on the point, arising in the said suit. Consequently, the learned counsel for the parties agree that the following Additional Issues in suit No. 73 which relates to the claim of immovable property, may be framed for the determination of the crucial point in controversy :-

(3.) The learned counsel for the parties further agree that in suit No. 228, the trial Court be directed to record findings on issue Nos. 4, 6, 10 and 11, which had been left undetermined.