JUDGMENT Jaspreet Singh, J. Heard Sri A.K. Jauhari, learned counsel for the appellants and Sri R.U. Pandey, learned counsel for the respondents. 2. The instant second appeal has been preferred by the defendant-appellants being aggrieved against the judgment and decree passed by the Lower Appellate Court dated 18.02.1987 passed by the 1st Additional Civil Judge, Sultanpur in Civil Appeal No. 237 of 1980 whereby it dismissed the defendant's appeal and affirmed the judgment and decree passed by the VIIth Additional Munsif, Sultanpur dated 24.08.1980 whereby the plaintiff-respondent's suit for temporary injunction was decreed. 3. The instant second appeal was admitted by the Court by means of order dated 31.03.2005 on the two substantial questions of law which reads as under:- "1. Whether after admission of plaintiff no. 2 that he neither has any share in the land in suit nor possession over the said land, the suit could be decreed. 2. Whether the finding recorded by the court below is based on misreading of evidence ignoring important aspect of the matter." 4. Briefly, the facts giving rise to the instant appeal are that the plaintiff-respondent instituted a suit seeking a decree of permanent injunction against the defendants with the averments that the property which was shown by letters Ka, Kha, Ga and Gha, the land appurtenant to the house of the plaintiffs and was being utilized by the plaintiffs for the purposes of tying their domestic animals and they also have some trees and the plaintiffs have been enjoying the fruit and the wood of such trees. The said land was also used for drying cow dungs and also for keeping the cattle feed and storing grains. 5. It was also pleaded that the plaintiffs have perfected their rights and the said land vested with them in terms of Section 9 of the U.P.Z.A. & L.R. Act and the defendants have no right title or interest in respect of the aforesaid property, however, they are trying to interfere in the possession and also kept a Saria over the land which belonged to the plaintiff and in the aforesaid circumstances, a decree of permanent injunction was sought restraining the defendants from interfering in the peaceful possession, use and occupation of the disputed land by the plaintiffs as well as seeking a decree of mandatory injunction commanding the defendant-appellants from removing the alleged Saria which was placed on the land in dispute. 6. The suit came to be contested by the defendants-appellants by filing their written statement and it was pleaded that the property in question was part of the land which was enjoyed by one Sri Jai Narayan Singh. It was stated that after the death of Sri Jai Narayan Singh, the defendants being the legal heirs and representative inherited the said property and they have also now acquired right in terms of Section 9 of the U.P.Z.A. & L.R. Act. It was also urged that the plaintiffs were actually trying to encroach upon the land which vested with the defendants. 7. Upon the exchange of pleadings, the Trial Court framed five issues, however, the solitary issue upon which the trial was contested was whether the plaintiff is the owner in occupation of the land in suit and the trees standing thereon as alleged. The parties led their respective evidences and thereafter the Trial Court by means of judgment and decree dated 23.04.1980 partly decreed the suit in so far as the relief of permanent injunction was concerned, but it turned down the relief of mandatory injunction. 8. Being aggrieved, the defendants preferred a Regular Civil Appeal under Section 96 C.P.C. before the Lower Appellate Court which was registered as Civil Appeal No. 237 of 1980. The Lower Appellate Court also considering the respective contentions raised before it and noticing the evidences led before the Trial Court affirmed the findings of the Trial Court and dismissed the defendant's appeal by means of judgment and decree dated 18.02.1987 and thus being aggrieved against the aforesaid two judgments and decrees that the defendants have approached this Court by means of the instant second appeal. 9. The submission of learned counsel for the appellant is that at the outset, the Lower Appellate Court did not frame the point of determination and therefore the appeal has not been properly decided and it is in violation of the provisions contained under Order 41, Rule 31 C.P.C. 10. In support of his contentions, he relied upon a decision of Apex Court in the case of U.P.S.R.T.C. v. Mamta; AIR 2016 SC 948 . 11. The other contentions raised by the learned counsel for the appellant is that plaintiff no. 3 Shiv Nayak Singh appeared as P.W. 3 and in his examination-in-chief made a statement which was contrary to his stand as contained in the plaint in suit. 11. The other contentions raised by the learned counsel for the appellant is that plaintiff no. 3 Shiv Nayak Singh appeared as P.W. 3 and in his examination-in-chief made a statement which was contrary to his stand as contained in the plaint in suit. It was stated by him that he had no share in the property in question nor he had any concern with the said property. 12. The crux of the submission is that once such an admission was available on record in the testimony of P.W. 3 who was the plaintiff himself, the suit for injunction ought not to have been decreed. It is also urged that apart from this statement, it was also stated by the P.W. 3 that over some part of the disputed land, the defendants also had their possession. This also amounted to an admission regarding the possession of the defendants and in a suit for perpetual injunction, possession was an important ingredient and once the aforesaid fact was brought to the notice as evident from the testimony of P.W.3, the suit for injunction could not have been decreed and as such both the courts have erred in granting the decree and affirming it respectively. 13. It is further contended by learned counsel for the appellant that both the courts have misread the evidence regarding the important aspects of the matter which was reflected from the testimony of the witnesses and by ignoring the same, it has resulted in sheer miscarriage of justice and for the aforesaid reasons, the second appeal deserves to be allowed. 14. Sri Pandey, learned counsel appearing for the respondents refuting the contentions of the learned counsel for the appellant submits that first and foremost the property in question belonged to Jai Narayan Singh, however, the location of the disputed property is not contagious to the property of Jai Narayan Singh, though, the defendants have raised a plea that they have inherited the property from Jai Narayan Singh. 15. Be that as it may, even if at all that is taken to be true yet they would have no right to interfere or cause any interference in the use, occupation in the land of the plaintiff which was separate and was contagious and appurtenant to their house and was far away from the house of Jai Narayan Singh. 15. Be that as it may, even if at all that is taken to be true yet they would have no right to interfere or cause any interference in the use, occupation in the land of the plaintiff which was separate and was contagious and appurtenant to their house and was far away from the house of Jai Narayan Singh. It is also submitted that even the case set up by the defendants claiming title to the property from Jai Narayan Singh was found to be false, inasmuch as, all their attempts to gain access to the property was thwarted inasmuch as, the proceedings initiated before the Revenue Court as well as the before the Consolidation Officer, their claim came to be rejected. Large part of the land and property of Jai Narayan Singh came to be vested with the Gram Samaj as he had died issue-less and there was none to claim inheritance. 16. It is thus submitted that for the reasons, it would be clear that neither the defendants have any right, title or interest nor they could establish their rightof inheritence to the property and they not being the original inhabitants of the village in question, they could not have perfected their rights in terms of section 9 of the U.P.Z.A. & L.R. Act and for the said reason, the Court has considered the matter in the correct perspective and decreed the suit for perpetual injunction which has been affirmed by the Lower Appellate Court which requires no interference as these are pure findings of fact and is not amenable for disturbance in exercise of powers under Section 100 C.P.C. 17. The Court has considered the rival submissions and also perused the material on record. 18. The Court has considered the rival submissions and also perused the material on record. 18. At the outset, it may be stated that though the appeal was admitted on the two substantial questions of law which have been reproduced hereinabove but since the learned counsel for the appellant has raised the issue of judgment passed by the Lower Appellate Court being against the mandate of Order 41, Rule 31 C.P.C. as it has not formulated the points of determination and is liable to be set aside is being noticed to be rejected for the reasons that considering the fact that the Lower Appellate Court has considered the respective contentions of the parties, it has noticed the case as well as the evidences and has exercised the power of the Lower Appellate Court as it should be and therefore merely for non-framing of the points for determination, this Court is not inclined to set aside the said judgment only on this ground as it would be saved in terms of Section 99 C.P.C. This aspect of the matter has already been considered by this Court in Dalla v. Nanhu 2019 (1) ADJ 246 and in Gita Devi v. Jai Nath which has also been affirmed by the Apex Court in. 19. Even otherwise, it would be seen that the learned counsel for the appellant could not indicate that what prejudice has been caused by not framing the points for determination even though all the contentions which were raised have been noted and considered and a finding has been given in respect thereto. Considering the decision which has been cited by the learned counsel for the appellant in the case of U.P.S.R.T.C. v. Mamta (Supra), it would indicate that the case has no applicability, inasmuch as, in the said case the judgment was set aside not on the account that the points for determination were not framed rather it was set aside as it lacked the basic ingredients of a judgment as neither the statements of the facts of the case were noted and nor the contentions were recorded while passing the order in appeal, thus, for the reasons, the case has no applicability and this Court agrees with the decision rendered in Dalla v. Nanhu (Supra) and Gita Devi (Supra). 20. Now, coming to the other questions which has been raised regarding that after an admission made by the plaintiff no. 20. Now, coming to the other questions which has been raised regarding that after an admission made by the plaintiff no. 2 whether the suit could be decreed. In this regard, it would be relevant to notice that there is no provisions which stipulates that the statement of any witness can be discarded merely because it contains a certain admission or is to be read against a person. In the instant case, the plaintiff no. 2 Shiv Nayak Singh when he appeared as witness before the Court as P.W. No. 3, he made a statement against his own stand in the plaint. This at best would render the witness to have turned hostile and the record would also indicate that the plaintiffs made an application for transposing the plaintiff no. 2 as a defendant which was rejected by the Court. 21. Considering the aforesaid fact what this Court finds that in case if any witness makes a statement against his own case, such a witness's testimony is to be appropriately perused and cannot be discarded in its entirety. It was also open for the plaintiffs to have declared him hostile and could have avail the opportunity of cross-examining him, however, the same was not done. In the given circumstances where neither the P.W. 3 was declared hostile nor the plaintiffs took the opportunity to cross-examine him, hence, the Court will be required to scrutinize his testimony with great caution and care subject to the other evidences available on record to ascertain how much weight can be ascribed to such a witness. 22. It is in this view that the evidences which have been brought on record and considered by the Trial Court including the statement of the plaintiff no. 2 and plaintiff no. 3 indicating that the disputed land in question is part of their sehan and they have been utilizing it for their domestic purposes and for beneficial use of their house. Once this aforesaid fact has been established by the testimony of the plaintiff no. 1 and plaintiff no. 2, if the testimony of Sri Shiv Nayak Singh who appeared as P.W. 3 is seen, it would indicate that though in his examination in chief, he gave a statement contrary to what has been stated in the plaint case but in his cross-examination, he has supported the case which was setup by the plaintiffs. 23. 1 and plaintiff no. 2, if the testimony of Sri Shiv Nayak Singh who appeared as P.W. 3 is seen, it would indicate that though in his examination in chief, he gave a statement contrary to what has been stated in the plaint case but in his cross-examination, he has supported the case which was setup by the plaintiffs. 23. The testimony in this view cannot be treated to be reliable and needs to be tested and corroborated with the testimonies of the other witnesses. In so far as the location and the user of the disputed property is concerned, apart from the plaintiff nos. 1 and 2, the statement of Shiv Nayak Singh also supports the same. Merely at one point of time he had stated that he has got no concern with the property in question would not give any rise to any admission that the case set up by the plaintiffs as whole would fail or that since the P.W. 3 made a statement contrary to the stand of the plaintiffs that the defendants are in possession would not indicate that merely because of the statement, the defendant would be treated to be in possession while the other plaintiff-witnesses clearly established the case set out in the plaint. In so far as the issue of possession is concerned, not only the defendant's claim, their possession on the disputed property but it was incumbent upon them to have proved their case as well. Their entire case, if seen in contrast with the case setup is that they had inherited the property from Jai Narayan Singh. The two Courts clearly noticed that the source of inheritence was first treated on the basis of succession alternatively it was also pleaded on the basis of a will and then a third person, the nephew of Jai Narain Singh was placed and through him the land was claimed. However, neither of the three aspects could be established by the defendants. 24. The alleged will upon which they have claimed was also not produced before the Court. However, neither of the three aspects could be established by the defendants. 24. The alleged will upon which they have claimed was also not produced before the Court. On the other hand, there were documents placed on record indicating that there was a litigation in respect of the property of Jai Narayan Singh which was engaging the attention of the Revenue Courts and the said court found that there was no successor of Jai Narayan Singh and the land had vested with the Gram Samaj. 25. In this view of the matter, the contentions and the grounds upon which the defendants have raised their defence falls flat. 26. In the aforesaid backdrop, it cannot be said that the courts below have committed any error in misreading the evidence rather the evidence which has been produced by the parties have been scrutinized by the Courts below and have given a finding that the disputed land is appurtenant and for the beneficial use of the plaintiffs who are using the same for their domestic purposes and are in possession. These findings are pure findings of fact and accordingly in terms of Section 100 C.P.C. requires no interference from this Court. 27. With the aforesaid, the appeal is devoid of merit and is dismissed. In the facts and circumstances, there shall be no order as to costs. 28. The records of the courts below shall be returned expeditiously.