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2019 Supreme(Bom) 895
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Vibha Kankanwadi, J.
Asaram And Others - Appellants
Vs.
Jayshree - Respondent
928 Second Appeal No. 240 of 2018
Decided On : 11-04-2019
For the Appellant : Mr. Patil Milind M. (Beedkar)
For the Respondent: Mr. Chandrakant V. Thombre
Headnote:
Code of Civil Procedure, 1908 – Order XLI Rule 31 and Section 96 – Indian Penal Code, 1860 – Section 498 A, 323, 504 read with 34 – Perpetual Injunction – Cancellation of sale deed – Present appeal has been filed by original plaintiffs who had filed Special Civil Suit before Joint Civil Judge, Senior Division, Jalna for cancellation of sale deed and perpetual injunction. – What is not in dispute is that, plaintiff No.2 got married to defendant. Plaintiff No.1 is the father of plaintiff No.2 and father-in- law of defendant – Plaintiff No.1 was the owner of agricultural land Gut – Plaintiff No.2 is serving in Indian Army and used to reside at the place of his posting – Further it is not in dispute that, in the year 2005 the defendant had lodged report against the plaintiffs contending that, they have committed offence punishable under Section 498 A, 323, 504 read with 34 of the Indian Penal Code – After a full fledge trial, the plaintiffs have been acquitted – Further it is not in dispute that, a document of sale deed came to be executed by plaintiffs No.1 and 2 in favour of defendant in respect of land Gut No.94. – Held, It is to be noted that, the learned first appellate Court himself has not framed points for determination. – Where in fact Rule 31 of Order XLI specifically states that, the Judgment of the appellate Court shall be in writing and shall state the points for determination. – That means it is not expected from the first appellate Court that, it should pick up the issue that has been framed by the trial Court and then give answer to that issue. – In the present case, the first appellate Court was aware about the seven issues those were framed by the trial Court and then went on to pick up each issue which was framed by the trial Court for discussion. Such exercise is not contemplated under Order XLI Rule 31. – What is expected is that the first appellate Court should apply its own mind and frame those points for determination which are arising out for determination. – While framing those points the first appellate Court is required to consider the pleadings of the parties as well as the evidence to some extent. – Therefore, in this case though there is some discussion in respect of evidence by the first appellate Court, it was on the basis of or in relation to the issues those were framed by the trial Court. – That cannot be taken as a compliance of mandatory provision of law comprised under Order XLI Rule 31 of Code of Civil Procedure, and therefore, definitely the matter deserves remand for proper determination of points by the first appellate Court and findings or decision to be given on those points. – When the matter deserves remand, this Court is restraining itself from making any comment on the merits of the case. – Further taking into consideration the fact that the suit was of 2008, and the appeal which was filed in 2012 deserves remand. – The only direction that can be given is to expedite the matter. – Hence, with these observations following order is passed – Second Appeal Partly Allowed
JUDGMENT :
1. Present appeal has been filed by original plaintiffs who had filed Special Civil Suit No.91 of 2008 before Joint Civil Judge, Senior Division, Jalna for cancellation of sale deed and perpetual injunction.
2. What is not in dispute is that, plaintiff No.2 got married to defendant. Plaintiff No.1 is the father of plaintiff No.2 and father-in- law of defendant. Plaintiff No.1 was the owner of agricultural land Gut No.94 admeasuring 1 H 54 R situated at Mauje Saigaon Tq. Badnapur Dist. Jalna. Plaintiff No.2 is serving in Indian Army and used to reside at the place of his posting. Further it is not in dispute that, in the year 2005 the defendant had lodged report against the plaintiffs contending that, they have committed offence punishable under Section 498 A, 323, 504 read with 34 of the Indian Penal Code. After a full fledge trial, the plaintiffs have been acquitted. Further it is not in dispute that, a document of sale deed came to be executed by plaintiffs No.1 and 2 in favour of defendant on 18-08- 2008 in respect of land Gut No.94.
3. With these background the plaintiffs had come with a case that, defendant started picking up quarrels with plaintiff No.2 and his relatives and then she used to go to her parental house. After the acquittal of the plaintiffs from the criminal trial, father of the defendant insisted plaintiff No.1 to transfer the suit land in favour of defendant so that he would send her back for cohabitation. Accordingly the father of he defendant had gave threat to the plaintiffs. The plaintiffs further contended that, on 18-08-2008 defendant with her father and other persons from village Pachod had come to the house of plaintiffs in vehicle, they had beaten the plaintiffs and other persons in their house. They had broken the door of house of the plaintiffs, snatched amount of Rs.20000/- from a trunk and took both the plaintiffs forcibly in the vehicle to Badnapur at Sub-Registrar's Office. It is stated that, by giving threats and putting their life in fear, the sale deed has been got executed in respect of land Gut No.94. It is also stated that thereafter plaintiff No.1 had lodged report about the incident. Further his wife had also filed another report with the police station regarding the incident that had taken place at the house. It is stated that, the defendant is trying to dispossess plaintiffs from the suit land. In fact the sale deed in question is not binding on them and deserves to be cancelled, and therefore, they filed the suit for cancellation of the sale deed as well as permanent injunction.
4. The defendant appeared in the matter, filed written statement. She denied that, any such incident as narrated in the plaint had taken place on 18-08-2008. She has denied that, any criminal force was used as against plaintiffs. She has stated that, at the time of sale deed she was residing with the plaintiffs but due to the dispute she had gone to her parental house. Though the plaintiffs have been acquitted from the complaint under Section 498 A of Indian Penal Code, she had decided to prefer an appeal. The plaintiffs were indebted because of the said prosecution and therefore they had decided to sell the suit land for repayment of those debts. Plaintiffs therefore, requested the father of the defendant to purchase the suit land with the condition not to prefer any appeal and then they could maintain the defendant properly. The said request was accepted by her father and got the sale deed in the name of defendant. It is stated that, since then she is in possession of the suit land as owner and cultivating it. She contends that, the said sale deed is legal and valid, and binding on the plaintiffs. She also contends that, immediately on the next date i.e. on 19-08-2008 the plaintiffs had beaten her and therefore she had lodged report with police on 28th of August 2008.
5. Taking into consideration these rival contentions, issues came to be framed. Parties have led oral as well as documentary eviden
