GURCHARAN SINGH BALKARAN SINGH Vs. SHYAM KAUR

JUDGEMENT

(1.) THIS revision petition challenges the order of the learned Revenue Appellate Authority, Bikaner dated 19- 6-68, whereby he rejected the appeal of the petitioners filed against the order of the Asstt. Collector Hanumangarh dated 17-2-68. The facts of this case are that the non-applicants filed a suit for declaration in the court of the Asstt. Collector, Hanumangarh challenging an earlier decree passed by the Asstt. Collector in case No. 7/61 for partition of holdings. THIS decree was passed on 7-3 63 and has been characterised as a collusive decree. The trial court framed 7 issues as follows: (1) Whether the decree passed by the court on 7-3 63 in suit No. 7/61 was collusive u/s 4 (a) of the Hindu Succession Act, (2) Whether u/s 4 (b) of the Hindu Succession Act the defendants No. 3 to 6 are not entitled to any share. (3) Whether according to sec. 4 (c) of the Hindu Succession Act, the plaintiff No. 1 is entitled to a share equal to that of a son and whether she is entitled to bring a suit. (4) Whether the decree in the previous suit was passed without impleading plaintiff No. 1 as a party and if so, what is the effect on the suit. (5) Whether the suit is maintainable in the Revenue Court. (6) Whether the suit has been filed on insufficient court fee. (7) Whether the suit was barred by limitation. The issues were framed by the trial court on 16-10-67 and issues No 2 to 7 were held as legal issues and the court decided these by its order dated 17-2-68. These were decided in favour of the plaintiff. The petitioners felt aggrieved by this order and preferred an appeal before the learned Revenue Appellate Authority, Bikaner, who by his impugned order upheld the decision of the trial court. Hence this revision petition. The learned counsel appearing for the petitioners contended that a very important issue in this case was whether the property in dispute was an ancestral property or self acquired by Hajoor Singh No such issue was framed by the trial court and without recording evidence in the case, the trial court made a presumption that this property was self-acquried by Hojoor Singh. It was urged that this presumption was without any basis and the trial court had made this presumption without any evidence on record. The decision on i> sue No. 2 given in favour of the plaintiff was, therefore, ab-initio illegal and void. It was argued that issue No. 2 is a mixed issue of law and fact and the trial court had not exercised its jurisdiction in a proper manner when it treated issue No, 2 as a purely legal issue and gave a decision without recording evidence. It was contended that the second issue whether u/s. 4 of the Hindu Law the plainiff No. 1 was entitled to equal share with the son of deceased Hajoor Singh was dependent on the adjudication of the fact whether the property in dispute was self-acquired property of Hajoor Singh or it was the ancestral property. The trial court, it was argued, had passed a perfunctory order while deciding this issue inas-muchas no reasons were assigned in support of the decision. Issue No 4-On this issue the contention was that the dispute was triable by a Civil Court, where as the trial court had held that it enjoyed jurisdiction for the settlement of the dispute. 1963 RLW 516 (Begraj vs. Gumanaram) was cited in support of the point that a suit for declaration lies in a Civil Court. It was urged that the trial court had made a mistake in not following the rule laid down in this case and that an error had been committed by the trial court in not discussing and assigning reasons while deciding the issue No. 4. It was urged that the court had assumed jurisdiction illegally Issue No. 5as regards issue No. 5, it was argued that enquiry was not made by the trial court whether the land in dispute was ancestral and without this the decision given was entirely er oneous and illegal. Issue No. 6on this issue, no contentions were made. Issue No. 7the question of limitation was decided in favour of the plaintiff. The learned counsel cited 1950 Madras 596 (Subathullahi Sahib vs. Mohd. Labbai) para 6, in support of his contention that a court should receive the evidence adduced and decide all the issues in order to avoid a piece meal trial and a protracted litigation in the shape of an appeal and remand of the case, in case the decision of the subordinate court on 'preliminary issues is not upheld by the appellate court. It has been held in this case that under O. 14, R. 2 of the CPC. the court has a discretion as to the order in which it should try the issues arising in the case and the power to dispose of the issues in the way which it considers to be most conductive to the rendering of justice, so that prolonged litigation may be avoided. He also cited 1957 RLW 323 (Prithviraj vs. Mannalal) in support In this case Wanchoo C J. and Dave J have held as follows "it seems to us useless to decide even an issue of law as preliminary issue, if for example, it is clear to the prima facie Court that if it decides that issue, it will hold that the suit is not barred by limitation or res judicata. It is only where the court can prima facie see that the suit is barred by limitation or by res judicata that it may proceed to try the issue as a preliminary issue and dispose it of. " 1949-H. P. 7 (Jobandas vs. Gandaram) was also brought to my attention. In this case also the view held was that it will be the duty of the lower court to give findings on all issues. It was strenuously contended that if a question of law and fact are both involved, adjudication on fact should be given first. The judgment of the learned RAA has been assailed on the ground that he had not applied his mind to the legal aspects of the case at all and had passed a very perfunctory order, violative of the mandatory provisions of 0. 41, R. 31gpc and therefore liable to be set aside, 1963 RLW 316 was cited in support of this contention, wherein, Justice Modi has held that the appellate court must come to a firm grips with facts and salient points arising in the case, discuss the same and pass a self-contained judgment, so that a substantial compliance with the requirements of O. 41, R. 31 CPC is made. The learned counsel appearing for the non-applicants controverted the petitioner's case and argued that Order 14, rule 2 of the Civil P. G. gives discretionary powers to the court and where an issue of law is involved, it is mandatory to decide that issue first. 1933 All 749 (Sheo Baran Singh vs. Laxmi Narain) was cited in support of his contention It has been held in this case that it is for the trial court to decide in what order it will decide the issues and that O 14, R. 2 gives discretionary powers to the trial court, 1932 Bombay 128 (Sowkabai vs. Tukojirao) was also cited in support of the same point. It has been held that under O-14, there is no power in the court to frame something in the nature of a preliminary issue of fact. Where the court has framed all issues which properly arise, the judge, may come to the conclusion that one or more of those issues should be tried first and independently. He may do so if the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues necessary. It was also strenuously contended that u/s. 230 of the Rajasthan Tenancy Act, revision does lie because the final decree is appealable before the Board. The main contention of the learned counsel was that the trial court has a conclusive discretion in the matter. 1962 All 572 was cited, wherein it has been held that when a preliminary point is raised in a case which affects the very entertainment or maintainability of a suit, it is not always proper to pass an order of hearing the preliminary point at the time of final hearing of the suit. Such a point should ordinarily be decided at an earlier stage. It was further argued that the applicant had failed to move an application in the trial court for the amendment of the issues and no steps were taken by them under O-14, R. 5, of the CPC. The trial court had held that all these issues were legal issues and the learned RAA had upheld that decision and, therefore, revision was incompetent. It was strenuously maintained that all the issues were purely legal issues and there was no question of investigation of facts. Another averment made by the learned counsel was that this court has merely to see whether jurisdiction has been exercise by the lower courts in a proper manner or not. 1963 RRD 239 (Asala vs. Narain) was cited by the learned counsel in support of his argument that a suit for the cancellation of a decree in a Revenue Court on ground of fraud or collusion is not necessarily triable by Civil Court. Hon'ble Justice Modi has held that such a view will defeat the intention of the legislature and bar the jurisdiction of the Revenue Courts. In his rejoinder the learned counsel appearing for the applicants pleaded that revision is competent in terms of Section 230 of the Rajasthan Tenancy Act before this Board as no appeal lies in the Board against the order passed by the Assistant Collector or the SDO u/s. 225 of the Rajasthan Tenancy Act. U/s. 225 of the Tenancy Act, the finding could not be challenged, after adjudication of the case and the only remedy available to him was to challenge the same by way of revision. Reliance has been placed on AIR 1960 SC 941 (Sataydhan vs. Smt, Deorajin Debi) which debars k party from challenging an interlocutory order if such an order after adjudication of the case finally could have been challenged by way of an appeal or revision. I have given my careful consideration to the contentions made on behalf of the parties and have perused the record of this case. The trial court has decided all the issues except issue No. 1 without recording evidence. 1957 RLW lays down the rule that under O. 14, R. 2, the court should look at an issue of law and if it is of the opinion that prima facie, the decision will go one way namely that the case or part of the case Was to an end, it should proceed to decide the issue as a preliminary issue as, for example, the question of jurisdiction or limitation. The view of the court, however, was that if the decision of such a issue did not finally dispose of the case, it was pointless to adjudicate on such an issue. From the test laid down in this case, it appears to me that issue No 5 and issue No. 7 alone could be treated as preliminary issues. Issue No, 5 relates to the jurisdiction of the Revenue Court and the maintainability of the suit before it and issue No 7 was in respect of the question of limitation and whether the suit was barred thereby. If the trial court had chosen to decide these two issues as preliminary issues, there was sound sense and legal justification for that course of action. The trial court, however, has treated almost all issues as preliminary issues and had chosen to given an adjudication on these issues without recording evidence. Issue No. 2 is whether defendants No. 3 to 6 were not entitled to inheritance under Hindu Law. Issue No. 3 & 4 are inter-connected with issue No. 2. In all these three issues, a very vital (question which has been agitated is whether the land in dispute was ancestral or self-acquired by Hajoor Singh. The trial court has treated this property as self-acquired. THIS has been done without recording evidence and there is considerable force in the contention raised on behalf of the applicants that this presumption by the trial court is entirely un-warranted and unjustified and tantamount to exercising jurisdiction not only with material irregularity, but illegality. In 1957 RLW 323, the High Court of Rajasthan has laid down the rule that it is useless to decide even an issue of law as a preliminary issue, if its disposal does not finally dispose of the suit and the rule which has been commended is that under O. 14, R. 2, generally speaking if the issues are mixed issues of law and fact and the preliminary issues do not dispose of the case finally it would not be improper for the court to say that it will decide the preliminary issues also along with the other issues of the case. In AIR 1959 Madras 596 and 1963 RLW 101, the judges have gone a step further and held that in appealable cases, the trial court, as well as, the first appellate court should decide all issues irrespective of the fact whether any issue went to the root of the case THIS has been commended so that piecemeal trial and protracted litigation may be avoided. In the instant case,the adjudication given by the trial court on issue No. 2, 3, & 4 appears to be entirely unjustified and un-waranted. It would have been more correct for the trial court to have decided all issues after recording evidence. I have carefully examined the judgment given by the learned RAA He has failed to give an adjudication on each issue and has disposed of the appeal in a mechanical and summary manner. In the last para of his judgment he says at one place" esjs fopkj esa odhy vihykuv dk bl LVst ij ;g dguk gs fd rudhgkr uecj 2 o 3 legal and factual issue gs odr ugha j[krka bu rudhgkr dh 'kdy esa irk ugha pyk gs fd ;g legal issue ugha gsa Towards the close of his judgment, he has recorded his opinion. ,slh lwjr esa ekstwnk issue lkjs gh legal issues gs vksj esjs fopkj esa budk fu. kz; igys vnkyr ekrgr esa fd;k gs og Bhd gh tku im+rk gsa vihy i= ukeutwj fd;k tkdj gqde vnkyr ekrgr cgky j[kk tkrk gsa It appears from the perusal of his judgment that the learned RAA did not care to apply his judicial mind to the legal aspects of the appeal before him and passed a mechanical order without forming an option of his own. He had said very half heartedly" budk fu. kz; igy vnkyr us fd;k gs og Bhd gh tku im+rk gsa The trial court too has decided the issue in a causal and perfunctory manner The learned RAA has exercised the jurisdiction vesting in him with material irregularity and he has passed an order which is perfunctory and which is violative of the mandatory provisions of O. 41, R. 31 of the CPC and is therefore, liable to be set aside. The result of the foregoing discussion is that the revision application is accepted and the orders of the lower courts are set aside and the case is remanded to the trial court for recording evidence and thereafter deciding all issues. Pronounced in open court. .