JUDGMENT
R.L. Anand, J.
1. This is defendants appeal against the judgment and decree dated 8.1.1996 passed by the Additional District Judge, Gurgaon, who allowed the appeal of the plaintiff and set aside the judgment and decree of the trial Court dated 11.1.1999 and remanded the suit with the directions to the trial Court to deal with the issues on merit and give a specific findings on each and every issue.
2. Some facts can be noticed in the following manner:-
3. Lachhman Dass, plaintiff and Chander Parkash defendant No. 2 were pleaded to be the owners in possession of the residential house marked by letters ABCHGFED bearing No.EP-4 measuring 504 sq. yds. shown in green colour and red colour in the site plan attached with the plaint and situated in Mohalla Pathanwara, Sohana, Tehsil and District Gurgaon. According to the plaintiff, the said house was allotted to the uncle of the plaintiff and defendant No .2 by the Rehabilitation Department, which was later on got registered by them in favour of Jetha Nand in the office of the Sub-Registrar, Gurgaon. Jetha Nand, uncle of the plaintiff, transferred the house in question to the plaintiff and defendant No. 2 and later on the said house was partitioned between the plaintiff and defendant No .2 in the year 1984 by way of family settlement and since then the plaintiff has become the owner in possession of the house marked by letters EFGH, including the red portion marked by letters EFGH, while the defendant No. 2 is owner in possession of the portion of the house No.EP-4 marked by letters ADEN in the site plan attached with plaint. The red portion marked by letters FEGH is part of and parcel of the house marked by letter ABCHGRRD to the positive knowledge of defendant No. 1. The plaintiff had got constructed his house after getting the site plan approved from the Municipal Committee, Sohana, and has left uncovered and unbuilt the area shown in red colour marked by letters EFGH. The defendant No. 1 is in possession of house No.EP-3 owned by Verran Bai measuring 106 sq. yds., claiming himself to be an heir of said Veeran Bai. The defendant No. 1 has got no concern with the portion marked by letters EFGH in the site plan in any manner. No door of the house of defendant No. 1 opens towards the said red portion nor there is any other opening of his house towards the said land of the plaintiff. Defendant No. 1 never used the said land shown in the red colour, which has been used by the plaintiff as part and parcel of his house. The plaintiff apprehends an illegal encroachment on the red portion by the defendant No. 1, thus, the plaintiff prayed for a decree for declaration that the plaintiff is owner in possession of house No. EP-4 marked by letters BCEM in the site plan attached with plaint shown in red colour and further sought a relief of permanent injunction restraining the defendant No. 1 from opening any door of his house or raising any kind of appurtures on the suit land or causing any obstruction in the house of the same by the plaintiff.
4. Notice was given to the defendants. The suit was resisted by defendant No. 1 who took the preliminary objection that the plaintiff and defendant No. 2 had no locus standi over the disputed red portion. Defendant No. 1 also denied that the red portion is part and parcel of the property No. EP-4 and that the plaintiff is in exclusive possession of the red portion as the same in being used as a joint street. According to the defendant, it was being used as a joint street. The plaintiff has no cause of action in filing the present suit and that the plaintiff and defendant No. 2 are estopped by their own act and conduct in filing the said suit. The defendant No. 1 also took the objection that the Civil Court has no jurisdiction to try the suit as the property shown in red colour is part of alleged evacuee property bearing No.EP-4 and the suit matter cannot be adjudicated by the Civil Court; that the suit is mala fide and filed with oblique motive in order to convert a public street into a private property by the plaintiff by misguiding the court and suppressing the true facts. The defendant No. 1 also took the objection that the suit of the plaintiff is barred by the principle of constructive res judicata as the matter in controversy was agitated by the plaintiff before the Chief Settlement Commissioner, Haryana, in which the defendant No. 1 was party to the petition u/s 24 of the Displaced Persons (Compensation and Rehabilitation) Act, which petition of the plaintiff was dismissed on 24.11.1993.
5. On merits, the stand of defendant No. 1 was that Jetha Nand never transferred the property in dispute in favour of the plaintiff and defendant No. 2. No door of the house of defendant No. 1 opens towards the portion shown red. The disputed land is part and parcel of joint public street used by the plaintiff, defendant No. 1 and Har Devi, widow of Nobat Ram, Harijan. With the above defence, the defendant No. 1 prayed for the dismissal of the suit.
6. The plaintiff filed a rejoinder to the written statement of the defendant No. 1 in which he reiterated the allegations made in the plaint by denying those in the written statement.
7. From the above pleadings of the parties, the following issues were framed by the trial court:-
“(1) Whether the plaintiff and defendant No. 2 are owner in possession of house EP-4? OPP
(2) Whether there took place any family settlement in the year 1984? OPP
(3) Whether the land/disputed site is part and parcel of land owned by plaintiff? OPD
(4) Whether the plaintiff has no locus standi to file the present suit? OPD
(5) Whether the plaintiff is estopped from filing the present suit by own act and conduct? OPD
(6) Whether the civil Court has no jurisdiction as disputed property is evacuee property? OPD
(7) Whether the suit of the plaintiff is barred by principle of res judicata? OPD
(8) Relief.”
8. The parties led oral and documentary evidence in support of their case and after the closure of the evidence, the trial Court took up issue No. 6 at the first instance and. decided issue No. 6 in favour of the defendants and against the plaintiff. I can precisely quote the reasons given by the learned trial Court in deciding issue No. 6 in favour of the defendant, which read as under:-
“I am taking this issue first. The burden to prove this issues is on the defendant. The learned counsel for the defendant has argued that the civil Court has no jurisdiction to decide res-judicata on this question because it is dispute of evacuee property. He has brought to my notice Section 46 of Administration of Evacuee Property Act, 1950. Section 46 says that No Civil or Revenue Court shall have jurisdiction (a) to entertain or adjudicate upon any question whether any property or any right or interest in any property is or is not evacuee property; (b) . . .; (c) to question the legality of any action taken by Custodian General or the Custodian under this Act; or (d) in respect of any matter which the Custodian General or Custodian is empowered by or under this Act, to determine.
On the other hand the learned counsel for the plaintiff has failed to rebut this issue and failed to lead any evidence to the contrary. Therefore, this issue is decided in favour of the defendants and against the plaintiff.”
9. After deciding issue No. 6 in favour of the defendants and against the plaintiff, the trial Court remarked that it did not want to give findings on other issues because the jurisdiction of the civil Court was barred. Resultantly, the plaintiff was non-suited.
10. I do not at this juncture want to comment upon whether the findings given by the trial Court on issues No. 6 are correct or not because a prejudice is likely to be caused to either of the parties in case the impugned judgment of the first appellate Court is set aside or upheld but I am disposing of this appeal after examining the legality of the impugned judgment and decree.
11. To proceed further with the facts, the plaintiff was aggrieved by the judgment and decree of the trial Court and he filed an appeal before the first appellate Court, who for the reasons given in paras 14 and 15 of the impugned judgment set aside the judgment and decree of the trial Court and remanded the case to the trial Court to deal with all the issues on merits and give a specific findings on each and every issue. Paras 14 and 15 of the judgment of the first appellate Court read as under: –
“14. It is a fact that the trial Court has not given finding on all the issues on merits and has dealt only issue No. 6 just on the basis of the provisions contained in Section 46 of the Administration of Evacuee Property Act, 1950. The facts discussed herein above clearly reveal that there is no issue to decide the suit property is an evacuee property or not. There is no evidence on record which has not been dealt by the trial Court i.e. an allotment letter and Conveyance Deed on the file in favour of Jetha Nand from whom the present plaintiff has claimed the right and there is law that when a sale deed has been executed in……….have any jurisdiction in respect of that property thereafter.
15. It is also admitted fact on the file that issue No. 6 has not been treated as preliminary issue because as per the provision of Civil Procedure Code the preliminary issue can be treated only on those points where no evidence is required but in the instant case the trial Court has framed eight issues and have allowed the parties to lead evidence. There is substantial oral as well as documentary evidence on the file on behalf of the plaintiff as well as of the defendant, which has not been dealt or discussed by the trial Court, so it can be safely said that while arriving at into conclusion the trial Court has not appreciated the facts, documents and evidence before it and has given the observation just referring to the provision of Section 46 without discussing the pleadings or evidence of the parties on merit. The arguments raised by the counsel for the defendant and law cited by him is not disputed that the facts of the instant case are distinguishable and the Court has not to given any finding whether the suit property is an evacuee property or not, rather there is a dispute between the parties as the plaintiff has claimed the portion to be the part of his property whereas the defendant has contended that the disputed portion of land is a public street and used as such by the plaintiff, defendant No. 1 and one Nobat Ram. The trial Court has not touched the said issue or controversy and has summarily dismissed the suit by giving vague observation that Civil Court has got no jurisdiction. Under such circumstances, I am of view that the impugned judgment and decree is certainly liable to be set aside and the trial Court has to deal the matter by discussing the evidence of the parties and giving finding on all the issues categorically.”
12. In this case the issues were stuck on the question of law and facts and issue No. 6 was to the effect whether the civil Court had no jurisdiction to entertain the suit. Order 14 Rule 2, C.P.C. lays down that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. Accordingly to Sub-rule (2), where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
13. Mr. Gopi Chand, learned counsel for the respondent No. 1, has defended the order of the first appellate Court and submitted that when the parties had already led evidence on all the issues, it was not open to the trial court to try issue No. 6 as a preliminary one and to dismiss the suit. In support of his contention, the learned counsel relied upon Shri T.P. Sanghvi v. Shri Om Parkash and Ors., (1992-1) 101 P.L.R. 118, wherein in para-5, it was held as under:-
“It is manifest from the record that the parties have already concluded their respective evidence and now the suit is stated to be at the stage of hearing, final argument. Therefore, now at this stage, in my view, it will not be correct to order to treat issue No. 1 as a preliminary issue as it will also be against the very object of the provisions of Order 14 Rule 2 of the Code of Civil Procedure. Concurrently, the issues in the suit were framed as well as on 2.12.1985 and it was open to the defendant at the time to make a prayer or treating the issue of jurisdiction of the Court as a preliminary issue.”
14. Mr. Gopi Chand also placed reliance on Bhag Singh and Ors. v. Nek Singh and Ors., (1994-3) 108 P.L.R. 151. In this judgment also, the Hon’ble Single Judge of the High Court dealt an issue as preliminary without giving a finding that the issue involved a pure question of law. He took into consideration various facts which were disputed and which could not have been made basis without affording the parties opportunity to lead evidence. In the light of the background, the Hon’ble D.B. set aside the order of the learned Single Judge.
15. Mr. Gopi Chand also placed reliance upon Varkey v. Devassy and Ors., A.I.R. 1967 Kerala 132, where it was held that the decision on each issue is necessary and the case set up on one issue which has not been discussed and points covered by other issues which have not been considered in the judgment, such judgment and decree are liable to be set aside.
16. In my opinion, the arguments of Mr. Gopi Chand are not correct. A reading of Order 14 Rule 2 Sub-rule (2) shows that after framing the issues as required under the law on questions of law and facts under Order 14 Rule 1 C.P.C, the Court has the power to dispose of an issue purely on the question of law at the first instance, if that issue of law relates to the jurisdiction of the Court or is bar to the suit created by any law for the time being in force.
17. In the present case, the facts are totally different. In this case all the issues were framed rightly by the trial Court. Issue No. 6 was never treated as preliminary by the trial Court. After hearing the arguments of the counsel for the parties, the learned trial Court formulated an opinion and the mind that if the findings on issue No. 6 go against the plaintiff, the suit is likely to be dismissed on the point of jurisdiction. In these circumstances, the trial Court thought proper to take up issue No. 6 at the first instance. When that issue was dealt by the trial Court, the findings went against the plaintiff and in that background, the suit of the plaintiff was dismissed because the findings on issue No. 6 goes to the root of the case. Once the jurisdiction of the Civil Court to entertain a suit is barred, in that eventuality, the Civil Court could not give the findings with regard to other issues. That was exactly done in the present case. The counsel appearing for the appellant rightly submitted that if on trial of all issues if the court finds to render findings on other issues, because they would have no binding effect on the court to which the plaint may be presented later on. If the jurisdiction of the Civil Court is expressly or impliedly barred by any law of the land and after taking the evidence, the Court formulates the opinion by holding that its jurisdiction is bared, it will dismiss the suit or reject the plaint or transfer the suit as the case may be. The civil Court is not expected to give findings on other issues. Had the first appellate Court set aside the findings of the trial Court and had decided issue No. 6 in favour of the plaintiff, of course, the first appellate court was justified in remanding the case but the first appellate Court has proceeded with the wrong assumption that once the trial Court has framed the issues on question of law and fact and at the time of framing of the issues, had not decided to treat any issue as preliminary, then, in that eventuality, the trial Court is bound to decide all the issues on merits. In the opinion of this Court, the first appellate Court has not rightly appreciated that the trial Court, in fact, had framed all the issues on question of law and facts, called upon the parties to lead evidence and when the final arguments were completed, it formulated an opinion that the civil Court had no jurisdiction to entertain the suit after taking the evidence, therefore, the trial Court took up issue No. 6 at the first instance. It was never decided as preliminary issue and once the findings of the trial Court have gone in favour of the defendant, the suit of the plaintiff was dismissed.
18. In this view of the matter, I am of the opinion that the first appellate court fell in error in setting aside the judgment and decree of the trial Court.
19. Consequently, the appeal is allowed. The judgment and decree dated 8.1.1998 is hereby set aside and the case is remanded to the Court of Additional District Judge, Gurgaon, with the direction to re-admit the appeal to its original number and decide issue No. 6 at the first instance. If the first appellate Court endorses the finding of the trial Court, then the result is a forgone conclusion and if the findings of the first appellate Court go against the findings of the trial. Court, then, it will always be open to the first appellate Court to remand the case to the trial Court to give findings on issues Nos. 1 to 5 and 8.
20. The parties through counsel are directed to appear before the first appellate Court on 15.10.1999.