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2014 DIGILAW 3624 (ALL)

Raj Kumari v. Chandra Pal

2014-12-04

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J. 1. The defendant/appellant has field this second appeal against the judgment and order dated 24.4.2009, passed by the Additional District Judge, Court no.4, Lucknow, in Regular Civil Appeal No. 76 of 2008, whereby the appeal has been dismissed. 2. The brief facts are that the respondent purchased a House no. E-3300 , area 49.30 Sq. Meter situate at Rajajipuram, Lucknow from its allottee and owner Shri Khushi Ram Bhootani, by means of a registered deed dated 19.3.1996. The respondent also took the possession of the disputed property on the date of sale deed. The name of the respondent was also mutated in the Municipal record and he has regularly been paying house and water tax in respect of house in dispute. Since the respondent had to live at Sitapur in connection with his business and was not able to look-after the house, the appellant took unauthorized possession of the house and started living therein since 2000 without taking any permission from the respondent. The respondent served a notice upon the appellant asking her to vacate the house but when the notice was not complied with, the respondent filed a suit for possession. 3. The appellant filed her written statement admitting that the house in question was allotted to Shri Khushi Ram Bhootani but since he did not have sufficient money for purchase of the house, the appellant had given him a loan of Rs. 15,000/-. Since Shri Bhootani could not return the loan amount, he gave possession of the house in question to the appellant in the year 1983 in lieu of the loan amount. The appellant thereafter invested more than Rs. 30,000/- in the development of the property and since then she is peacefully living therein. Shri Khushi Ram Bhootani had also assured to execute sale deed in favour of the appellant but when did not execute the sale deed and tried to evict her forcibly, the appellant to had to file a suit for injunction which was numbered as Regular Suit No. 51 of 2001. It was further stated in the written statement by the appellant that Shri Khushi Ram Bhootani had no right to sell the house to the respondent. 4. It was further stated in the written statement by the appellant that Shri Khushi Ram Bhootani had no right to sell the house to the respondent. 4. On the basis of the pleadings of the parties, the learned trial court framed four issues and on the basis of the evidence on record, recorded a finding that the appellant has not been able to give any evidence with regard to the fact that she ever paid Rs. 15,000/- to Shri Khushi Ram Bhootani or that he ever promised or assured to execute sale deed in her favour. On the basis of the aforesaid finding, the suit filed by the respondent was decreed and the appellant was directed to vacate the house within 30 days. 5. Feeling aggrieved by the aforesaid judgment and decree, the appellant filed First Appeal No. 76 of 2008, which was also dismissed with cost by the judgment and order dated 24.4.2009. 6. I have heard the learned counsel for the parties and have also perused the record. 7. The learned counsel for the appellant has submitted that admittedly the appellant is in possession of the hosue in question since 1983 and there is no evidence on record that the appellant took forcible possession of the house. This gives force to the case of the appellant that Shri Khushi Ram Bhootani had permitted the appellant to live in the house in lieu of the loan amount to the tune of Rs. 15,000/- taken by him at the time of purchase of the said house. In fact Shri Khushi Ram Bhootani had also agreed to execute a sale deed in her favour but when he refused to do so and also tried to vacate her forcibly, the appellant had to file a suit for permanent injunction which is still pending. 9. The appellant on the assurance of Shri Bhootani had spent more than 30,000/- in making necessary alteration and modification in the house and has thus every right to live in the house being a bonafide resident. It is also submitted by the learned counsel for the appellant that in the suit filed by the appellant which is numbered as 51 of 2001 and the suit filed by the respondent for possession, involve a similar controversy, therefore, subsequent suit filed by the respondent ought to have stayed under Section 10 of the Code of Civil Procedure. It is also submitted by the learned counsel for the appellant that in the suit filed by the appellant which is numbered as 51 of 2001 and the suit filed by the respondent for possession, involve a similar controversy, therefore, subsequent suit filed by the respondent ought to have stayed under Section 10 of the Code of Civil Procedure. The learned counsel for the appellant has assailed the judgment of the learned appellate court on the ground that the points of determination have not been framed while disposing of the appeal. 10. The learned counsel appearing on behalf of the respondent has submitted that so far as the question of stay of the suit is concerned, there is no pleading on behalf of the appellant in this regard. Unless there is any specific pleading that the subsequent suit was liable to be stayed, there was no occasion for the trial court to have framed any issue on the point and to have decided this controversy. Moreover the points in controversy in both the suits are entirely different and the parties are also not same. In these circumstances, the provision of Section 10 CPC are not attracted and the learned trial court rightly decreed the suit in favour of the respondent. With regard to the right of the appellant, it has been submitted on behalf of the respondent that there is no documentary evidence to show that the appellant had given a loan of Rs. 15,000/- to Shri Khushi Ram Bhootani for purchase of the house and in lieu thereof Shri Khushi Ram Bhootani permitted her to live therein. There is also no evidence on record to show that Shri Khushi Ram Bhootani ever agreed to sell the house in question to the appellant. There is a concurrent finding of fact by both the courts below in this regard and the same cannot be disturbed by this Court unless the same is found to be perverse. The appellant has not been able to show any perversity in the finding of the fact recorded by both the courts below. 11. The submission on behalf of the respondent with regard to the provision of Order 41 Rule 31 C.P.C. is that the appellate court although has not framed the point of determination but has recorded a separate finding in respect of the issues framed by the trial court. 11. The submission on behalf of the respondent with regard to the provision of Order 41 Rule 31 C.P.C. is that the appellate court although has not framed the point of determination but has recorded a separate finding in respect of the issues framed by the trial court. The learned appellate Court has also discussed all the issues and has given its own finding by deciding the appeal. This amounts to substantial compliance of the provisions of Order 41 Rule 31 CPC. 12. The learned counsel for the respondent in support of his argument, has relied upon a judgment reported in 2006 (24) LCD 849 Amal Orpavam and others Versus R.C. Diocese of Madurai and others; in which the Hon'ble Supreme Court has held that non compliance of the provision of order 41 Rule 31 C.P.C. may not vitiate the judgment and make it wholly void and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. 13. Another case law relied upon by him is reported in 2013 (31) LCD 448 Smt. Firoz Jahan and others Versus Nazim Husain and others; in which a coordinate Bench of this Court has held that non framing of points for determination by the appellate court is not fatal, if the appellate court was conscious of the main point and it is reflected from the judgment. The same view has been expressed by another coordinate Bench of this Court in a case of Gurukul Nishulk Mahavidhyalay Versus Misri Lal Gupta reported in 2013(31) LCD 1667. 14. The learned counsel for the appellant has also relied upon several decisions, one of which is reported in 2014 (32) LCD 1268 Smt. Gajrani and others Versus Smt. Gajrami and others; in which a coordinate Bench of this Court remanded the appeal to the appellate court on the ground that the learned First Appellate Court decided the appeal without framing any point for determination. 15. Having considered the submissions made on behalf of the parties and the various pronouncements on the subject and also on perusal of the judgment passed by the First Appellate Court, I find that the appellate court has proceeded to decide the appeal without framing the points for determination. Even the issues framed by the trial court have not been indicated in the judgment. Even the issues framed by the trial court have not been indicated in the judgment. The provisions of Order 41 Rule 31 C.P.C. are mandatory in nature and require framing of points for determination before deciding the appeal. The appellate court is required to record its reason either for reversing the finding of the trial court or affirming the same. Unless the points for determination are framed, the appellate court cannot give decision required for disposal of the appeal. In a recent judgment reported in 2014 (1020) LCD 274; the Hon'ble Supreme Court has held that the appeal has to be disposed of in the light of the Order 41 Rule 31 CPC which mandates that the appellate court has to frame the points for determination, the decision thereon and reasons for the decision. 16. In the case in hand it is clear that the learned appellate court while disposing of the first appeal has not framed the points for determination and has proceeded to discuss the evidence and affirmed the findings straightway. This cannot be said to be substantial compliance of the provision of Order 41 Rule 31 CPC. 17. In view of the above, I am of the view that the matter be remanded to the appellate court to decide the appeal afresh in accordance with law. 18. With the aforesaid observations, the second appeal is allowed and the judgment and order passed by the first appellate court dated 24.4.2009 passed in Regular Civil Appeal No. 76 of 2008, by the Additional District Judge, Court No.4, Lucknow, is set aside with the direction that the learned first appellate court restore the appeal to its original number and decide the same afresh after giving opportunity of hearing to both the parties and on the basis of material already on record. As the mater is quite old, the appellate court is expected to expedite the hearing and disposal of appeal. It is further made clear that it will be open for the parties to raise all the grounds before the appellate court.