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2014 DIGILAW 3324 (ALL)

Ram Singh Yadav v. Rajesh Sharma

2014-11-10

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal, J. 1. The defendants/appellants have filed this Second Appeal assailing the judgment and order dated 23.4.2008, passed by the Additional District Judge, Court No. 1, Lucknow, in Regular Civil Appeal No. 197 of 2007, whereby the appeal has been dismissed with cost. 2. The brief facts are that the respondents filed a suit for permanent and mandatory injunction against the defendants/appellants with the allegation that they purchased a plot of land No. 112 measuring 1800 Sq. Ft. situate at Mohalla Makka Ganj, Iradat Nagar, Lucknow from Smt. Urmila Singh and Vishambhar Singh by means of registered sale deed dated 6.1.1989. In the year 1994 when the plaintiff/respondents tried to raise boundary wall over the plot in question, the defendants/appellants interfered in their construction work and tried to take forcible possession over the plot in question. It was further pleaded that the defendants/appellants inspite of interim injunction order, raised a permanent structure over 450 Sq. Ft. of land, as a result of which the Northern Exit of the plaintiff/respondents has been obstructed. For the removal of this structure a relief for mandatory injunction was also prayed by the plaintiffs/respondents. 3. The defendants/appellants contested the suit and filed their written statement stating therein that they had no knowledge about any sale deed executed in favour of the plaintiff/respondents. They further pleaded that the plaintiffs/respondents wanted to take forcible possession of their land for which they had instituted a suit being R.S. No. 544 of 1994 in the court of Munsif South, Lucknow, in which an interim injunction was passed on 21.10.1994 and the parties were directed to maintain status-quo. This interim order was subsequently confirmed by the order dated 17.8.1995. However, the said suit was dismissed for non prosecution on 15.11.1995 and an application for restoration was moved by them. The said restoration application was allowed and the suit was restored on its original number but since then the plaintiff/respondents had been trying to disobey the injunction order granted by that court and filed a suit for permanent mandatory injunction on baseless grounds. 4. The said restoration application was allowed and the suit was restored on its original number but since then the plaintiff/respondents had been trying to disobey the injunction order granted by that court and filed a suit for permanent mandatory injunction on baseless grounds. 4. On the basis of pleadings of the parties, the learned trial court framed 10 issues and recorded a finding that on the basis of the evidence available on record, the plaintiffs/respondents were owner in the possession of the plot in question and the defendants/appellants had been creating hindrance in the construction of work of the plaintiff/respondents. On the basis of the aforesaid finding, the suit was decreed and the defendants/appellants were permanently restrained from making any interference in the title and possession of the plaintiffs/respondents. The defendant/appellants were further directed to remove unauthorized construction within a month. 5. Feeling aggrieved by the judgment and decree of the trial court, the defendants/appellants preferred First Appeal being Civil Appeal No. 197 of 2007, which was also dismissed by the Additional Distinct Judge, Court No. 1, Lucknow by the judgment and order dated 23.4.2008. 6. I have heard learned counsel for the parties and have gone through the record. 7. The learned counsel for the appellants Shri P.C. Agrawal has argued that since the defendants/appellants had denied execution of the sale deed in favour of the plaintiffs/respondents and the plaintiffs/respondents have been claiming ownership and possession on the basis of the sale deed executed in their favour, it was their burden to prove the execution of the sale deed and the title with possession over the land in dispute. The procedure for proving documents with regard to the transfer of immovable property as provided in the Indian Evidence Act is that the executor of the document and the Marginal Witnesses are examined to prove execution and attestation of the deed. In this case neither the executor nor any marginal witness was examined before the trial court and as such the sale deed was not proved but the learned trial court wrongly took into consideration and relied upon the aforesaid sale deed. The plaintiff/respondents were also required to prove their predecessor interests but no such effort was made by the plaintiffs/respondents before the court below. 8. The plaintiff/respondents were also required to prove their predecessor interests but no such effort was made by the plaintiffs/respondents before the court below. 8. It has further been argued by the learned counsel for the appellants that the construction over the land in dispute was existing since before the filing of the suit and as such the relief of mandatory injunction could not have been granted by the learned court below. The First Appellate Court did not take into consideration the aforesaid argument raised on behalf of the defendants/appellants. In support of their arguments the learned counsel for the appellants has relied upon a case reported in AIR 1968 Bombay 112 Mohammad Yusuf and another v. D. and another; in which the Hon'ble Bombay High Court has held that the evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. Another case law relied upon by the learned counsel for the appellants is reported in AIR 1981 Madhya Pradesh 69 Smt. Rami Bai v. Life Insurance Corporation of India; in which the Hon'ble Madhya Pradesh High Court has held that as per the provision of Section 67 of the Evidence Act the signature on a deed may be proved either by calling upon the persons who signed the document or by calling a persons in whose presence the documents were signed and written. The submission on behalf of the appellant is that in the present case the sale deed allegedly executed in favour of defendants/appellants was not at all proved according to the law but both the courts below wrongly relied upon the sale deed and recorded a finding that the plaintiff/appellants are owners in possession of the land in dispute. 9. The learned counsel for the appellants has assailed the judgment of the learned First Appellate Court on a technical ground that the learned First Appellate Court while deciding the first appeal has not complied with the provision of Order 41 Rule 31 CPC, which provides that the appellate court has to frame points for determination, the decision thereon, reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. According to the learned counsel for the appellants the provision of Order 41 Rule 31 C.P.C. is mandatory and has to be complied with by the appellate court as held by the Hon'ble Supreme Court in the case of Union of India and another Vs. Ranchod and another reported in 2009 (27) LCD 407 and United Engineers and Contractors Vs. Secretary to Government of Andhra Pradesh reported in AIR 2013 SC 2239 and relied upon by this Court in the case of Smt. Gajrani and others v. Smt. Gajrami and others reported in 2014(32) LCD 1268; in which it has been held that the provision of Order 41 Rule 31 C.P.C. is mandatory in nature and in a similar matter where the appellate court had decided the appeal without framing the points of determination, the Hon'ble Court set aside the judgment and decree and remanded the matter to the court concerned for decision afresh in accordance with law. 10. The learned counsel for the respondents, namely, Shri Hari Om Singh Advocate has argued that the defendants/appellants had sought amendment during the pendency of the first appeal before the Additional District judge which was dismissed. Thereafter the defendants/appellants made every effort to prolong the decision of the appeal by moving frivolous applications one after the other and the learned appellate court having no other alternative rejected the prayer of the defendant/appellants and proceeded to hear the appeal. The appeal was ultimately dismissed and the sale deed of the plaintiff/respondents was believed. The learned appellate court has also found that the defendants/appellants had raised illegal structure over the land in dispute and also found that the defendant/appellants had not been able to prove their possession or title over the land in dispute and on the basis of the aforesaid findings, dismissed the appeal. With regard to compliance of Order 41 Rule 31 CPC the submission on behalf of the plaintiffs/respondents is that the learned appellate court has dealt with every ground raised by the defendants/appellants and merely non framing the points of determination will not vitiate the judgment of the appellate court. 11. With regard to compliance of Order 41 Rule 31 CPC the submission on behalf of the plaintiffs/respondents is that the learned appellate court has dealt with every ground raised by the defendants/appellants and merely non framing the points of determination will not vitiate the judgment of the appellate court. 11. In view of the law laid down by the Hon'ble Apex Court and relied upon by this Court, I do not find force in the submission of the learned counsel for the plaintiffs/respondents that the provision of Order 41 Rule 31 C.P.C. has been substantially complied with because from the perusal of the impugned judgment, I do not find any point of determination framed by the learned appellate court. Thus without entering into the merits of the Second Appeal I set aside the judgment and order dated 23.4.2008, passed by the First Additional District Judge, Lucknow in Regular Civil Appeal No. 197 of 2007 and direct the court concerned to restore the appeal to its original number and dispose of the appeal in accordance with law after giving opportunity of hearing to both the parties as early as possible. 12. With the aforesaid observations, the second appeal is allowed. 13. No order as to costs.