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2014 DIGILAW 3828 (ALL)

Subhash Chandra Pandey v. Isvardin

2014-12-23

MAHENDRA DAYAL

body2014
Civil Procedure Code, 1908 Section 100 and Order 41, Rule 31 - Suit for plot, by stating that respondents are owner in possession - Decreed with cost - First appeal - Allowed partly and suit in respect of mandatory injunction dismissed while in respect of relief of permanent injunction, appeal dismissed - Hence, second appeal - Sustainability of - Admittedly, First Appellate Court referred issues framed by Trial Court, thereafter, proceeded to decide appeal without framing any points of determination found not compliance with the procedure prescribed under Order 41, Rule 31 of code - As the appellate court is required to frame its own points of determination instead of taking up the issues framed by the trial court one after the other - Therefore, impugned Appellate order cannot be sustained, liable to be set aside - Matter remanded to First appellate Court to decide appeal afresh in accordance with law - Second appeal allowed. [Paras 2 to 13] JUDGMENT : Mahendra Dayal, J. This second appeal arises out of judgment and decree passed by the Additional District Judge-VII, Gonda, in Regular Civil Appeal No. 36 of 1998, whereby the appeal was partly allowed and the decree passed by the learned trial court in Regular Suit No. 632 of 1992 so far as it related to the removal of construction, the suit was dismissed but in respect of the decree for permanent injunction the appeal was dismissed and the defendant/appellants were restrained from making any interference in the property in dispute. 2. The brief facts are that the plaintiff/respondent filed a suit against the defendant/appellant with the allegation that they are the owners in possession on the plot in question shown by the red colour in the map attached with the plaint. The said disputed land is a part of land Gata No. 516 area 0.10 dismal. The plaintiff/respondents further alleged that they purchased the said property on 10.4.1981 by means of registered sale deed from Asharfi Lal and since the date of purchase they are in continuous and peaceful possession thereof. They further alleged that their residential house is also very near to this plot and as there was short space in their residential house, they started using land for keeping their animals. It was further alleged in the plaint that the defendant/appellants have been continuously threatening to dispossess the plaintiff/respondents and raise construction. They further alleged that their residential house is also very near to this plot and as there was short space in their residential house, they started using land for keeping their animals. It was further alleged in the plaint that the defendant/appellants have been continuously threatening to dispossess the plaintiff/respondents and raise construction. It was also alleged by the plaintiff/respondents that on 21.8.1996 the defendant/appellants had constructed their house which is adjacent to the disputed land and have encroached upon a portion of the disputed land. With the aforesaid allegations the plaintiff/respondents prayed for a decree of mandatory injunction directing the defendant/appellants to remove the construction raised over the disputed plot of land and permanently restrain them from making any interference in the peaceful possession of the plaintiff/respondents. 3. The defendants/appellants contested the suit and filed their written statements. It was alleged by them that the disputed land is the Bhumidhari land of the defendant/appellants, upon which they are in possession as owner thereof. The plaintiff/respondents have never been in possession of the said land. It was further alleged that the disputed land is the part of the grove land of the defendant/appellants. There were some other co-owner of the said land but all of them by means of the family settlement divided the said land and the dispute land fell into the share of the defendant/appellants. It was further alleged by the defendant/appellants that a suit for partition under Section 176 of U.P. Z.A. & L.R. Act is pending and there was an interim order but inspite of that the plaintiff/respondents have purchased the said property which is not binding upon the defendant/appellants and the sale deed executed in favour of the plaintiff/respondents was a nullity. It was further pleaded by the plaintiff/respondents that the suit was barred by 161 A of U.P. Z.A. & L.R. Act and the judgment dated 10.1.1992 is binding upon the parties and has an effect of res-judicata. The defendant/appellants also put forward a plea that the disputed plot of land is not part of Gata No. 516 but was a part of Gata No. 513. The defendant/appellants further denied having made any construction over any part of the disputed land. 4. The learned trial court on the basis of the pleadings of the parties framed as many as 9 issues and on the basis of findings recorded, decreed the suit with cost. 5. The defendant/appellants further denied having made any construction over any part of the disputed land. 4. The learned trial court on the basis of the pleadings of the parties framed as many as 9 issues and on the basis of findings recorded, decreed the suit with cost. 5. By means of the judgment and decree dated 3.4.1998 the learned trial court directed the defendant/appellants to remove the construction made towards the southern side of the disputed land within a month and also permanently restrained them from making any interference upon any portion of the land in dispute. 6. Feeling aggrieved by the judgment and decree passed by the trial court, the defendant/appellants preferred Regular Civil Appeal No. 36 of 1998, which was partly allowed by the judgment and decree dated 2.8.2001, passed by the Additional District Judge-VII, Gonda, whereby the appeal was partly allowed and the suit in respect of mandatory injunction was dismissed while in respect of the relief of permanent injunction, appeal was dismissed and the decree passed by the trial court was confirmed. 7. I have heard Shri Q.M. Haque, learned counsel for the appellants and Shri J.P. Tiwari, learned counsel appearing on behalf of the respondents. 8. At the very outset Shri Q.M. Haque, learned counsel for the appellants submitted that the judgment and decree passed by the First Appellate Court is bad in law as the same has been passed without following the procedure prescribed under Order 41, Rule 31 C.P.C. He submits that the provision of Order 41, Rule 31 of the Code provides that the appellate court has to frame points of determination and decide the appeal on the aforesaid points for determination on the basis of the evidence on record. It is further submitted that the aforesaid provision is mandatory and non- compliance thereof would render the entire judgment illegal. He has drawn attention of the Court towards the impugned judgment of the learned 1st Appellate Court and has submitted that the learned appellate court although has referred the issues framed by the learned trial court and thereafter proceeded to decide the appeal but without framing any points of determination. 9. The learned counsel for the respondents has on the other hand submitted that the learned 1st Appellate Court has discussed the entire evidence on record and on the basis of its own finding the judgment has been passed. 9. The learned counsel for the respondents has on the other hand submitted that the learned 1st Appellate Court has discussed the entire evidence on record and on the basis of its own finding the judgment has been passed. In this view of the matter, the provision of Order 41, Rule 31 C.P.C. stood substantially complied with. In these circumstances, the impugned judgment and decree passed by the learned 1st Appellate Court cannot be rendered illegal. 10. Before deciding the aforesaid controversy as to whether the provision of Order 41, Rule 31 CPC has not been complied with or not, it has been observed by this Court in various second appeals that the 1st appellate Court in most of the cases refer the issues framed by the trial court and proceed to decide the appeal on each and every issue, as if, the judgment is being passed by the trial court. Such procedure adopted by the 1st Appellate Court, cannot be said to be substantial compliance of Order 41, Rule 31 C.P.C., inasmuch as, the appellate court is required to frame its own points of determination instead of taking up the issues framed by the trial court one after the other. 11. In a recent judgment reported in 2014(102) ALR page 274 A.M. Sangappa @ Sangappa v. Sangondeppa and another; the Hon'ble Supreme Court has observed that in a series of decisions, this Court has highlighted as to how a Regular First Appeal is to be disposed of, particularly, in the light of Order 41, Rule 31 CPC. It mandates that the appellate court has to frame points for determination, decision thereon, reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. It has further been observed by the Hon'ble Supreme Court that the first appeal is a valuable right of the parties and unless restricted by law, whole case therein is open for rehearing both on questions of fact and law. Accordingly, the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth by both the sides. 12. Accordingly, the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth by both the sides. 12. In the present case, although the learned first appellate court has discussed the evidence on record but has not followed the procedure prescribed under Order 41, Rule 31 C.P.C. Under these circumstances without entering into the merits of the case the impugned judgment and decree dated 2.8.2001, passed by the Additional District Judge Court No.7, Gonda is set aside and the matter is remanded to the appellate court to decide the civil appeal in accordance with law. However, it is made clear that it will be open for the parties to raise all grievances before the court below. 13. With the aforesaid observations, the second appeal is allowed. Second appeal allowed.