A short question in this petition is as to whether the order dated 24th June 2011 passed by the learned Civil Judge, Anand in Regular Civil Suit No. 143 of 1989 requires to be interfered or not.
An application was moved by the present petitioner-original plaintiff to add issue under Order XIV Rule 5 CPC.
The issues before the trial Court were framed vide Exh. 42. They were re-cast vide Exh. 72. The request for recasting the issues and adding the same at Exh. 94 was objected to by the defendant; particularly the issues nos. 6/2 and 6/3. This Application was dismissed by the trial Court, and therefore, this writ petition.
Learned advocate Shri Parikh vehemently urged that if there is a material proposition of facts or law, affirmed by one party and denied by the other, the Court's duty is to frame the issue. The suit is based on the contention that the petitioners are cultivating the suit land since 1950 which is in their possession and there being a dispute with regard to the title of the plaintiff, the said issues require to be framed. It is also necessary as according to the learned advocate that suit is for injunction and a written communication has been made during the pendency of the suit stating therein that the plaintiff is in possession of the suit land as defendants cannot disturb such a possession which is a settled possession.
He has relied upon Section 32G of the Bombay Tenancy & Agricultural Lands Act, 1948 [hereinafter referred to as, "the Tenancy Act"] and urged that a person cultivating the land as on 1st April 1957 becomes the deemed purchaser of the land and therefore, whether such a provision would be applicable is not required to be proved and the same is a legal issue to be framed by the Court. He also urged that objection has been raised with regard to the issues no. 6/2 and 6/3 by the respondent-defendants, whereas no objection has been raised with regard to issues no. 6/1 and 6/4. It is the real controversy between the parties which needs to be recorded and the Court ought to have therefore added these issues.
According to learned senior advocate Shri Dhaval Dave appearing with Shri Jigar Patel submitted that the plaintiff has already instituted Tenancy Case No. 230 of 1994 before the Mamlatdar & ALT, Anand under Section 32G of the Tenancy Act and the whole design is to refer the dispute to Mamlatdar & ALT, Anand and take way the civil Court's jurisdiction. He further urged that the issues which have been cast already are sufficient for the Court to decide the lis between the parties, and therefore, no interference is required in a petition preferred under Article 227 of the Constitution as it is the discretion of the Court to add or strike out the issues at any stage of the proceedings. Reliance is placed on the decision of the Apex Court rendered in case of Gandabhai Jinabhai vs. Deceased Ramubhai Fakirbhai through his legal representatives and heirs Dalpatbhai Ramubhai & Ors., reported in 1982 GLH 17 wherein, this Court has held that whether a particular person was a tenant or not is exclusively required to be determined by the Tenancy Court and not only the jurisdiction of the Civil Court is barred but it is further provided that if a suit or proceeding is pending in a Civil Court, it would be stayed and the matter would be referred to the Tenancy Court.
The Apex Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. & Ors., reported in AIR 2008 SC 2033 has observed that, "..In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that s on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally." {Emphasis Supplied}.
It is further urged by the learned advocate that the municipal tax bills are also sent by the Municipality and that also would be indicative that this is not an agricultural land, otherwise, there would not arise any question of property tax being raised by the Municipality.
The issues initially framed vide Exh. 52 are as follows :-
{a} Whether the plaintiff provides his possession qua the suit property; as mentioned in paragraph 1 of the plaint;
{b} Whether the plaintiff proves that in the suit land, he enjoys uninterrupted, peaceful possession for the past thirty years;
{c} Whether the plaintiff is entitled to the prayers sought for;
{d} What shall be the order and decree.
Exh.
72 adds three issues, which read thus :-
{a} Whether the defendant proves that the disputed land is in the possession of the defendant-Institute;
{b} Whether defendant proves that the suit land has been converted into Non-Agriculture land;
{c} Whether the allegations made at paragraph 8 of Exh. 19 are being proved by the defendant.
Thereafter, the said application was made vide Exh. 94, where the petitioner-plaintiff has proposed four issues, which read thus -
{a} Whether the plaintiff proves that as per para 3(A) and 3(B), the defendant has admitted possession of the suit land of that of the plaintiff and therefore, had directed the plaintiff to pay municipality taxes.
{b} Whether the plaintiff proves that under the Bombay Tenancy & Agricultural Lands Act, he is a tenant under Section 70 (B).
{c} Whether the plaintiff proves that under Section 32 of the Act, he has become a deemed purchaser as per the Tenancy Act, and therefore, he is entitled to buy the land.
{d} Whether the plaintiff proves that mistakenly defendant had sent the bills for payment to the plaintiff.
The trial Court was of the opinion that the suit of the plaintiff is only for declaration and permanent injunction and no corresponding relief is claimed in the plaint and the application is not maintainable. It was also of the opinion that the issues were framed or recast to determine the real controversy between the parties with regard to the subject matter. It did recognize the Court's power to alter or modify the issues at any stage, however, order impugned states that there has to be a real controversy for the Court to frame a particular issue, and accordingly, rejected the request.
It would be appropriate at this stage to refer to the provision of Order XIV Rule 1 CPC. From the provisions of the law, it can be said that at any stage of proceedings, the Court can alter or add or strike of the issues. The issues are the material proposition proposed by one side and denied by the other. It is to determine the real controversy between the parties that issues are framed.
In the plaint, it has been pleaded by the petitioner herein that he is enjoying the suit land from 1952 and the same was given by the defendant for the past more than 30 years to the plaintiff. Plaintiff has sought permanent injunction and declaration in respect of the suit land against the defendant.
Subsequently, in an amended plaint, the plaintiff has taken a plea of being a tenant under the Bombay Tenancy & Agricultural Land Act. It can be noted from the pleadings as well as the record produced before this Court that the issues cast by the Court vide Exh. 52 and 72 would suffice to adjudicate the disputes pending between the parties.
The petitioner herein has already initiated proceedings under the Tenancy Act. Initially, while filing the suit, the petitioner plaintiff has claimed thirty years of possession qua the suit land. Of course, subsequently he has been permitted amendment in respect of his averment of being a tenant under the Tenancy Act, in a petition under Article 227 of the Constitution, this Court is of the opinion that the discretion exercised by the trial Court is not so perverse as to effect the vital right of the party and thereby cause grave injustice to the petitioner for this Court to interfere in this petition. As ruled in case of Kekkanda B. Poondeche v. K.D Ganapathi & Anr., reported in [(2011) 12 SCC 600], the Apex Court examined powers of High Court under Article 227 of the Constitution to hold that interference is called for only when the trial Court acted without jurisdiction or in excess of jurisdiction and order resulted in failure of justice. It is for the plaintiff-petitioner to prove his case on the strength of averments set-out, in the event of his proving his uninterrupted possession as a tenant and his continuing to cultivate the land, the petitioner can always succeed and thus, the order impugned may have made a mention of absence of such prayer that would not render the same bad in law. It is sufficient to hold that the issues already framed would cover the controversy between the parties. Again, this Court cannot be oblivious of the fact that the trial Court is within its right to add issue at any time, if such need so arises.
Resultantly, this petition fails and the same is dismissed in limine. Notice stands discharged with no order as to costs.
{Ms.
Sonia Gokani, J.} Prakash* Top