The absence of an issue on the defendant's plea of acquiring an easementary right was not fatal to the case, as parties led all evidence in support of their contentions.

( 1 ) THIS is an appeal under Rule 1 of Order XLIII CPC and by the plaintiff in OS. 249 of 1969 on the file of the Prl Munsiff, at Shimoga. He is aggrieved by an order of remand made by the Addl Civil Judge, Shimoga, in RA. 188 of 1972.

( 2 ) THE suit as laid by the appellant was for an injunction restraining the defendant from making use of his open space in order to effect repairs to his own building. The suit was resisted by the respondent on the ground that he was entitled to such a right by prescription. The trial Court framed two issues, and they are: (1) "whether the plaintiff proves that he was in exclusive possession of the plaint schedule land at the time of suit? (2) Whether the plaintifi is entitled to the permanent injunction sought against the defendant?

( 3 ) THE plea of the defendant that he had a prescriptive right as contended has been exhaustively considered by the learned Munsiff in the context of Issue No. 2. Indeed, parties have. led evidence on a proper understanding of their respective cases. The suit was decreed by the trial Court. On appeal, the learned Civil Judge, after making some general observations as to the cases of the parlies, found fault with the trial Court for not having framed an issue bearing on the plea of the defendant that he had acquired an easementray right to make use of the open space of the plaintiff in respect of which the injunction had been granted.

( 4 ) I have been taken through the judgment of the trial Court, and it is seen from the decision relevant to Issue No. 2 thait the entire evidence bearing on the plea of the defendant relative to the easementary right had been exhaustively considered. In such a situation, it seems to me that the proper cpurse for the first appellate Court to have followed was the one prescribed under Rule 24 of Order XLI CPC, instead of setting aside the entire judgment and decree and remanding the case for fresh trial on the basis of an alleged omission to frame an issue. That such is the proper course, is indicated by an enunciation of the Supreme Court in Nedunuri kamesramma v. Sampati Subba Rao, AIR 1963 SC. 884. The elucidation reads thus :"where the parties went tp trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the, other side it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground and also there is no need for a remit as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. "

( 5 ) VIEWED in the light of the above enunciation, the learned Civil Judge must be held to have not properly exercised the jurisdiction vested in him as an appellate Court. The Judgment, therefore, is clearly unsustainable. For the foregoing reasons, this appeal succeeds and is accordingly allowed. The judgment of the learned Civil Judge is set aside and the matter stands remitted to that Court for the disposal of the appeal on merits in the light of the observations made herein No costs.

--- *** ---

.

Click Here to Read the rest of this document