SANJEEV KUMAR Vs. SUMAN JAIN

JUDGEMENT

(1.) Discharged. The Caveat Petition stands disposed of.

(2.) Facts:

(3.) (i) Learned counsel for defendant No. 2 (present petitioner) vehemently argued that the learned Trial Court exceeded its jurisdiction and exercised its jurisdiction with material irregularity and illegality in not framing the proper issues. Plaintiff had claimed relief of declaring the sale deed in question as null and void. Mortgage, if any, executed on the basis of this sale deed was also sought to be declared null and void. It was on the basis of these two declarations sought for that the plaintiff had also prayed for the relief of permanent prohibitory injunction. However, specific issues in this regard were not framed. The onus to prove that sale deed in question was result of fraud and mis-representation lay upon the plaintiff. Since there was no issue framed with respect to declaratory reliefs, plaintiff cannot be said to have discharged the burden of proof that the sale deed in question was sham, forged and illegal document not binding upon him. Relying on Harbans Lal vs. Bhim Sain etc, 1977 (Vol. 17) Current Law Journal (Civil) (P&H) 259, learned counsel for the petitioner contended that the question of title was raised before the Civil Court, therefore, without framing specific issue concerning title of the suit property, the impugned judgment and decree becomes vitiated. Learned counsel also argued that defendant No. 2 had taken specific objection regarding incorrect valuation of the suit property and that the learned Trial Court had no jurisdiction to entertain the suit. Proper findings in accordance with law on these objections framed as issues No. 3 and 6 were not returned by the learned Trial Court. Therefore, application moved by defendant No. 2 (petitioner herein) under Order 41 Rule 25 of the Code of Civil Procedure was liable to be allowed. Learned Counsel prayed that the impugned order dtd. 4/4/2022 passed by the learned Appellate Court be set aside and the matter be remanded to the learned Trial Court in terms of the prayer made by the petitioner in his application under Order 41 Rule 25 CPC.