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2024 DIGILAW 1212 (ALL)

Bajifunnisha v. Khunni Lal

2024-05-06

J.J.MUNIR

body2024
JUDGMENT : Hon'ble J.J. Munir,J. 1. This is a plaintiff's second appeal, arising out of a suit for mandatory injunction. 2. The plaintiff, Bajifunnisha, instituted Suit No.217 of 1983, initially against the State of Uttar Pradesh, represented by the Collector, Jalaun at Orai and the Municipal Board, Kalpi, District Jalaun through its Administrator, praying that a decree of mandatory injunction be passed in her favour, directing that the tinshed worked illegal construction, admeasuring 15'x9', shown by letters ABJK in the plaint map, situate to the north of the plaintiff's shop, shown by letters ABHI, be removed by the defendants, rendering the land underlying the offending construction in the same state as it formally was, so that the plaintiff may use it for her access (ingress-egress) in the manner, it was earlier done. 3. Khunni Lal, who was a tenant in one of the plaintiff's shops and had raised the tinshed worked construction denoted by letters ABJK, was impleaded later on as defendant No.3 to the suit. This was done because in substance, the decree that the plaintiff claimed was against Khunni Lal; not the State or the Municipal Board. 4. The facts giving rise to this appeal are these: Smt. Bajifunnisha, the plaintiff-appellant, who shall hereinafter be called 'the plaintiff', instituted the suit with allegations in the plaint to the effect that she is the owner of a shop, situate in Tarnanganj, Town Kalpi, District Jalaun, denoted by letters ABHI in the plaint map. To the east of the shop under reference, which shall be called 'the shop in question', there are other shops of the plaintiff. To the west of the shop in question, lies land which is parti; to the north, the frontage of the plaintiff's shop and thereafter land described as parti. To the south of the shop in question is a road. The plaintiff is the owner of other shops, besides the shop in question, of which the former owner was the late Mustaq Ali son of Danish Ali, a resident of Mohalla Bhattipura, Town Kalpi, District Jalaun. The shop in question and the other shops are situate on a part of Nazul land, Plot No.4475 and shown in the Khasra Abadi for town Kalpi, relating to the year 1902-1903. A part of Nazul Plot No.4475 aforesaid was taken on lease in the year 1958 by Mustaq Ali. 5. The shop in question and the other shops are situate on a part of Nazul land, Plot No.4475 and shown in the Khasra Abadi for town Kalpi, relating to the year 1902-1903. A part of Nazul Plot No.4475 aforesaid was taken on lease in the year 1958 by Mustaq Ali. 5. Mustaq Ali got a plan sanctioned by the Municipal Board, Kalpi for the purpose of constructing five shops on the said land. He did construct five shops in accordance with the sanctioned plan. Each of these five shops had a projection (chhajja) sanctioned for them on both sides, to wit, the north and the south. The five shops last mentioned were transferred by way of sale in the plaintiff's favour by Mustaq Ali vide registered sale deed dated 15.09.1975. In this manner, the plaintiff became owner of the shop in question and the other shops that Musaq Ali owned. Her name was entered in the assessment register of the Municipal Board relating to the shop in question as well as the other shops, mutating out Mustaq Ali's rights. 6. The shop in question was let out to Khunni Lal, defendant No.3 to the suit at a rent of Rs.30/-per mensem. Khunni Lal, while in tenancy occupation of the shop in question, raised a wall in front of it i.e. to the north of the said shop, the pucca wall raised running from east to west. The wall was raised as aforesaid in the month of June, 1981 and a tinshed worked roof placed over it, occupying an area 15'x9', denoted by letters ABJK in the plaint map. The aforesaid unauthorized construction was put up after demolishing the plaintiff's projection (chhajja) illegally and unauthorizedly, about which the plaintiff says that Khunni Lal had no right. The plaintiff, accordingly, served a notice upon Khunni Lal on 20.07.1981, saying that the construction raised was without authority and illegal, which ought to be removed. In answer, Khunni Lal, by a reply, informed the plaintiff that the construction that he had raised over land to the north of the shop in question was rented out to him by the Municipal Board, Kalpi. 7. The plaintiff says that the shop in question has two doors, one to the north and the other to the south. In answer, Khunni Lal, by a reply, informed the plaintiff that the construction that he had raised over land to the north of the shop in question was rented out to him by the Municipal Board, Kalpi. 7. The plaintiff says that the shop in question has two doors, one to the north and the other to the south. The shop in question, owned by the plaintiff, has its frontage to the north and that using this frontage, the shop in question has its access to the highway. The land to the north of the shop in question is the plaintiff's appurtenant land. She has the right of access and use under the law over the said land and this beneficial use and access has been in vogue after construction of the shop in question. The construction raised by Khunni Lal leads to a violation of the plaintiff's rights, which would happen in the future too. The plaintiff has a right to approach the highway from the shop in question and the constructions raised have led to the value of the said shop being diminished. 8. The plaintiff says that land to the north of the shop in question is the shop's frontage and appurtenant land, which the Municipal Board, Kalpi has no right to let out to Khunni Lal. Also, Khunni Lal has deposited earth to the north of the shop in question, raising its height, which leads to water logging and blockage of water drainage to the western side. Now, the other shops, that the plaintiff owns, suffer water logging up in the front, causing the other tenants, who are in occupation, considerable annoyance, besides imperiling those constructions by a possible collapse. 9. The plaintiff says that the Municipal Board, Kalpi, their officers and servants are in connivance with Khunni Lal and have damaged the frontage of the shop in question. According to the plaintiff, it is for the said reason that the illegal construction raised to the north of the shop in question by Khunni Lal has not led the Municipal Board to proceed against him under Section 185 of the Uttar Pradesh Municipalities Act, 1916 (for short, ‘the Act of 1916’) though the officers and servants of the Municipal Board have been cognizant of the offending construction. The Municipal Board, defendant No.2 to the suit, in breach of their duties, are not taking any action against Khunni Lal. 10. The plaintiff says that under the circumstances, she is entitled to a mandatory injunction, directing the defendants to the suit to cause removal of the offending constructions denoted by letters ABJK (for short, 'the suit property'), lying to the north of the shop in question. The plaintiff has asserted that the suit property is owned by the State and in the management of the Municipal Board. Since the Municipal Board have let out the suit property to Khunni Lal, which the State owns, the State represented by the Collector and the Municipal Board, represented by its Administrator, have been impleaded as defendant Nos.1 and 2 to the suit. 11. The plaintiff also says that she has caused to be served a composite notice dated 31.03.1983 under Section 80 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) and Section 326 of the Act of 1916 upon defendant Nos.1 and 2, respectively, which they have received on 02.04.1984, but not caused the suit property to be restored, after demolishing the offending construction. 12. By the amendment and impleadment undertaken pending suit, Khunni Lal was impleaded as defendant No.3 to the suit and the mandatory injunction earlier directed against defendant Nos. 1 and 2 alone, claimed against him as defendant No.3, as well. 13. Defendant Nos.1 and 2 to the suit, who are proforma respondent Nos.2 and 3 to this appeal, respectively, filed a joint written statement. Defendant-respondent Nos. 2 and 3 to the appeal, shall hereinafter be referred to as 'defendant Nos.1 and 2', respectively. The case of the said defendants, pleaded in the written statement, is that Mustaq Ali got a lease of the shop in question executed in his favour in the year 1958. The lease was one for land meant to be utilized for residential purpose. He, however, constructed shops over the leased land. Mustaq Ali had no right to transfer the shops that he had constructed. If Mustaq Ali has transferred the shops constructed by him, that includes the shop in question, in the plaintiff's favour, defendant Nos. 1 and 2 are not bound by the said transfer. He, however, constructed shops over the leased land. Mustaq Ali had no right to transfer the shops that he had constructed. If Mustaq Ali has transferred the shops constructed by him, that includes the shop in question, in the plaintiff's favour, defendant Nos. 1 and 2 are not bound by the said transfer. Khunni Lal's possession over the shop in question and raising of a tinshed worked construction to the north of the said shop is admitted to defendant Nos.1 and 2. It is also admitted to the said defendants that the tinshed worked construction is illegal. It is the said defendants' case that the suit property has not been given on rent to Khunni Lal by them. Defendant Nos.1 and 2 merely realize tehbazari from Khunni Lal. The suit property is in the use of Khunni Lal, but it is neither the plaintiff's frontage nor land appurtenant to it. Since the suit property is being used by Khunni Lal, defendant No.2 is entitled to realize tehbazari from him. He has unauthorizedly raised constructions on the suit property and, therefore, defendant Nos.1 and 2 are not answerable for Khunni Lal's acts. The suit property was never let out by defendant No.2 to Khunni Lal nor did they ever authorize him to raise constructions thereon. Against Khunni Lal's illegal encroachment over the suit property, defendant No.2 has issued a notice under Section 186 read with Section 221 of the Act of 1916 on 22.07.1981. 14. It is also the case of these defendants that the suit is undervalued and court-fee paid insufficient. The suit is also claimed to be bad for non-joinder. There is also a plea on behalf of defendant Nos.1 and 2 that the composite notice served under Section 80 of the Code and Section 326 of the Act of 1916 is illegal. The plaintiff has no cause of action and the suit is not maintainable. The suit is also claimed to be barred by Section 41 of the Specific Relief Act, 1963. 15. Khunni Lal, who is defendant No.3 to the suit and was the sole appellant before the Lower Appellate Court, died pending appeal. The plaintiff has no cause of action and the suit is not maintainable. The suit is also claimed to be barred by Section 41 of the Specific Relief Act, 1963. 15. Khunni Lal, who is defendant No.3 to the suit and was the sole appellant before the Lower Appellate Court, died pending appeal. His heirs and LRs were brought on record before the Lower Appellate Court, to wit, Santosh Kumar son of Khunni Lal, Ram Janki widow of Khunni Lal and Smt. Rajni Porwal daughter of Khunni Lal, arrayed as appellant Nos.1/1 to 1/3, in that order. In the present appeal, the heirs and LRs of the late Khunni Lal are arrayed as defendant-respondent Nos.1/1, 1/2 and 1/3. Khunni Lal's interest represented by his heirs and LRs before this Court arrayed as defendant-respondent Nos.1/1 to 1/3, shall hereinafter be referred to as 'defendant No.3' collectively, except where an individual reference to one of them or to Khunni Lal becomes imperative in the context. 16. Defendant No.3 filed a written statement separately. He accepted the case that he had taken the shop in question on lease; that the said shop was transferred by a sale deed in the plaintiff's favour and on that basis, she is its owner. According to defendant No.3, the suit property, where tinshed worked construction has been raised by him, is neither in the ownership of the plaintiff nor subject to any easementary rights of hers. It is in no way the frontage of the shop in question. Defendant No.3 had taken the suit property on a yearly rent from defendant No.2 and pays that rent. All construction, that defendant No.3 has raised, is of a very temporary character. While undertaking the aforesaid construction, neither any projection of the plaintiff has been demolished nor the value of the shop in question diminished. It is more than 20 years since constructions were raised on the suit property. The plaintiff is not in possession of the suit property or has a right of passage over it. Instead, possession of the suit property and right of passage is held by defendant No.3, albeit by virtue of his tenancy right. So long as defendant No.3 is a tenant, the plaintiff has no right of passage over the shop in question or the suit property. Instead, possession of the suit property and right of passage is held by defendant No.3, albeit by virtue of his tenancy right. So long as defendant No.3 is a tenant, the plaintiff has no right of passage over the shop in question or the suit property. Also, by putting up a temporary tinshed worked construction, no obstruction is laid in gaining access to the road for the plaintiff. 17. There is also some pleading by defendant No.3 what this Court might not only consider unnecessary, but also scandalous. Nevertheless, it needs some reference. It is averred by defendant No.3 that the history of acquisition of the shop in question, or the land over which the shops are constructed, is very interesting. The plaintiff's husband, Abdul Rehman Khan was a prominent Congress Party leader of town Kalpi. He remained a member of the Nagar Palika for a considerable period of time. During the tenure of his office, using his influence with the Nagar Palika of which he was the Vice-Chairman and also the head of many of its committees as the Chairman, got the land housing the shop in question leased to Mustaq Ali, the plaintiff's brother or so to speak, Abdul Rehman Khan's brother-in-law. Later on, he made Abdul Rehman to execute a sale deed in the plaintiff's favour. The entire proceedings of lease by the Nagar Palika to Abdul Rehman and the subsequent sale are all but a sham and a device to perpetrate fraud. The suit against the third defendant has been instituted on unsustainable premises and ought to be dismissed with special costs under Section 35-A of the Code. 18. On the pleadings of parties, the following issues were struck by the Trial Court (translated into English from Hindi): “1. Whether the suit is undervalued and court-fee paid insufficient? 2. Whether the notice issued under Section 80 CPCand Section 326 of the Municipalities Act is illegal? 3. Whether the plaintiff's suit does not disclosea cause of action? 4. Whether the suit property is the plaintiff's shop's frontage? 5. Whether the suit property is land appurtenant to the plaintiff's shop? 6. Whether the sale deed executed by Mustaq Ali in favour of the plaintiff illegal? 7. Whether the suit is barred by Section 41 of the Specific Relief Act? 8. Whether the plaintiff's suit is maintainable? 9. 4. Whether the suit property is the plaintiff's shop's frontage? 5. Whether the suit property is land appurtenant to the plaintiff's shop? 6. Whether the sale deed executed by Mustaq Ali in favour of the plaintiff illegal? 7. Whether the suit is barred by Section 41 of the Specific Relief Act? 8. Whether the plaintiff's suit is maintainable? 9. Whether the plaintiff has a right to move across from her shop to the National Highway? 10. Whether the construction raised by defendant No.3 is illegal and unauthorized? 11. Whether the construction raised by defendant No.3 is of a permanent character? If yes, its effect? 12. Whether defendant No.3 is entitled to costs under Section 35-A CPC? 13. To what relief, if any, is the plaintiff entitled?” 19. The plaintiff examined in support of her case, Abdul Rehman as PW-1, Noor Ali as PW-2, whereas defendant No.3, Khunni Lal examined Muzaffar Khan, the Nazul Clerk with the Nagar Palika as DW-1, defendant No.3 himself as DW-3/1 and Hari Shanker as DW-3/2. Both sides produced a wealth of documentary evidence, details of which find elaborate mention in the Trial Court's judgment. It need not be recapitulated for the sake of brevity. However, so much of the evidence, documentary or oral, shall be referred as relevant at the appropriate stage during the course of this judgment. 20. In entering its judgment, the Trial Court held in the plaintiff's favour on Issues Nos.1, 2 and 3. Issue No.7 was answered in the plaintiff's favour, because defendant No.3 did not press it. Issue No.8 was also answered in the plaintiff's favour, whereas Issue No.6 was answered against the defendant, holding the sale deed by Mustaq Ali in the plaintiff's favour to be valid. Issues Nos.4 and 5 were answered together, holding in the plaintiff's favour on both issues to the effect that the suit property constitutes frontage of the shop in question and that it was land appurtenant to the said shop. Issue No.9 was answered by the Trial Court also in the plaintiff's favour, holding that the plaintiff was entitled to approach the P.W.D. Road, both from the northern side of the shop as well as the southern. Issues Nos.10 and 11 were answered together. Issue No.9 was answered by the Trial Court also in the plaintiff's favour, holding that the plaintiff was entitled to approach the P.W.D. Road, both from the northern side of the shop as well as the southern. Issues Nos.10 and 11 were answered together. Issue No.10 was answered in the plaintiff's favour holding that the construction raised on the suit property was illegal and unauthorized, whereas Issue No.11 was answered in the negative, holding that the construction standing on the suit property was temporary in nature. Issues Nos.12 and 13 were also tried together, where Issue No.13 was answered in the plaintiff's favour holding that defendant Nos.1 and 2 have not been able to explain why they permitted the illegal construction to remain in existence on the suit property. It was also held that it would be in the interest of justice to issue necessary directions to the said defendants. Issue No.12 was answered against defendant No.3, holding that he was not entitled to costs because he had himself committed an illegality. The suit was held fit to be decreed. 21. The Trial Court decreed the suit with costs vide judgment and decree dated 22.05.2000, issuing a mandatory injunction to defendant No.3 to remove the temporary construction standing on the suit property, denoted by letters ABJK within a month and restore the property to its original state. In default, the Trial Court directed defendant Nos.1 and 2 upon expiry of the period of time allowed to defendant No.3 to cause the constructions standing on the suit property to be removed, with costs to be borne by defendant No.3 and cause the suit property to be restored to its original state. 22. Defendant No.3 appealed to the District Judge, Jalaun at Orai, where the appeal was registered as Civil Appeal No.17 of 2000. It was assigned to the Special Judge (E.C. Act), Jalaun at Orai. The appeal came on for hearing before the Lower Appellate Court on 03.11.2007, when it was allowed, the decree of the Trial Court set aside and the suit dismissed. 23. The present second appeal was instituted by the disillusioned plaintiff on 12.02.2008. The appeal remained pending for a very long time for hearing under Order XLI Rule 11 of the Code. 23. The present second appeal was instituted by the disillusioned plaintiff on 12.02.2008. The appeal remained pending for a very long time for hearing under Order XLI Rule 11 of the Code. It was admitted to hearing as late as on 02.09.2021 on the following substantial questions of law: (A) Whether the judgement of the appellate court complies with Order 41, Rule 31 C.P.C.? (B) Whether the lower appellate court has committed an illegality in exercise of its jurisdiction in reversing the judgement and decree passed by the trial court without meeting out the reasonings given by the trial court? (C) Whether the obstruction created by raising structure over the patri in front of the shop of the plaintiff by the defendant/respondent amounts to depriving the plaintiff of access to the public road and as such the plaintiff/appellant had the cause of action and the right to file the suit? 24. Heard Mr. B.N. Agarwal, learned Counsel for the plaintiff, Mr. S.D. Kautilya, learned Counsel for defendant No.3 and learned Standing Counsel appearing on behalf of defendant No.1. No one appears on behalf of defendant No.2. 25. It is submitted by Mr. B.N. Agarwal, learned Counsel for the plaintiff that the Lower Appellate Court has committed a manifest error of law while writing the impugned judgment, inasmuch as the learned Judge has not set out points for determination, recording a decision on each point with reasons relative to the decision on those points. Mr. Agarwal submits that not doing so on the Lower Appellate Court's part is a breach of the mandatory requirement of Order XLI Rule 31 of the Code. He has pointed out that the Lower Appellate Court has written findings of reversal dealing with Issues Nos.4, 5, 8 and 9, framed by the Trial Court, without framing any points for determination. In support of his contention, Mr. Agarwal has placed reliance upon a decision of the Supreme Court in Malluru Mallappa (dead) through Legal Representatives v. Kuruvathappa and others, (2020) 4 SCC 313 . Learned Counsel for the plaintiff has placed further reliance upon the decision of the Supreme Court in H. Siddiqui (dead) by LRs v. A. Ramalingam, (2011) 4 SCC 240 . 26. Repelling the submissions advanced by Mr. B.N. Agarwal, the learned Counsel for defendant No.3, Mr. Learned Counsel for the plaintiff has placed further reliance upon the decision of the Supreme Court in H. Siddiqui (dead) by LRs v. A. Ramalingam, (2011) 4 SCC 240 . 26. Repelling the submissions advanced by Mr. B.N. Agarwal, the learned Counsel for defendant No.3, Mr. S.D. Kautilya, has submitted that Order XLI Rule 31 of the Code does not postulate an inflexible rule about the necessity of framing points for determination by the first Appellate Court, though these invariably ought to be framed. The submission is that if the Court of first appeal has substantially complied with the provisions of Order XLI Rule 11 of the Code in the sense that the findings of the Trial Court, necessary for the decision of the lis, have been discussed, the evidence appreciated and those findings reversed for reasons given, the mere absence of points of determination formally framed, would not vitiate the first Appellate Court's judgment. Mr. Kautilya has placed reliance in support of his submissions upon G. Amalorpavam and others v. R.C. Diocese of Madurai and others, (2006) 3 SCC 224 . 27. This Court is of opinion that Substantial Questions of Law (A) and (B) are so inextricably interlinked that both ought to be dealt with together. The Court, therefore, proposes to briefly notice the submissions of parties with reference to Substantial Question of Law (B) as well, inasmuch as the submissions hereinbefore noticed were largely confined to the necessity of framing points for determination. 28. As regards the related Substantial Question of Law (B), Mr. Agarwal has urged that the Lower Appellate Court has reversed a well reasoned judgment passed by the Trial Court without effectively setting aside the findings of the Trial Court on fact and law, which it could not do. It is urged that the Lower Appellate Court has carved out a third case to the effect that the plaintiff would become owner of the suit property if the suit is decreed for demolition of the temporary structure standing on the suit property. It is urged that the said finding is absolutely erroneous, inasmuch as the pleadings of parties are about the right to ingress and egress from the northern side of the shop in question. It is not at all about a claim by the plaintiff to ownership or an easementary right over the suit property. It is urged that the said finding is absolutely erroneous, inasmuch as the pleadings of parties are about the right to ingress and egress from the northern side of the shop in question. It is not at all about a claim by the plaintiff to ownership or an easementary right over the suit property. In support of his submissions, learned Counsel for the plaintiff has placed reliance upon a decision of the Supreme Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 . 29. On this substantial question, rebutting Mr. Agarwal's submissions, Mr. S.D. Kautilya, learned Counsel for the third defendant says, as already noticed, that the Lower Appellate Court has given detailed reasons to differ from the Trial Court on all effective findings necessary to reverse the Trial Court's decree. 30. Upon hearing learned Counsel for the parties, this Court is of opinion that the moot question, so far as Substantial Question of Law (A) is concerned, is whether the mere failure to frame points for determination, without anything more, would vitiate the judgment of a Court of first appeal. So far as Substantial Question of Law (B) is concerned, this Court thinks that it has to be seen from the tenor of the judgment by the first Appellate Court, the evidence on record and the findings of the two Courts below, if the Lower Appellate Court has effectively reversed the Trial Court's judgment, setting aside all relevant findings for good and valid reasons. It would be well to remember for this Court that in a second appeal, if the Lower Appellate Court has considered the findings recorded by the Trial Court and reversed the same, giving reasons supported by evidence on record and the law quite different from the Trial Court's, it is not the domain of this Court under Section 100 of the Code to interpose our opinion merely on the ground that the Trial Court's opinion is more plausible or convincing, unless the Lower Appellate Court has failed to give reasons for a finding in disagreement with the Trial Court, or given reasons that are perverse, or manifestly illegal, because those are against the settled position of the law. This Court has no jurisdiction to interfere with the Lower Appellate Court's findings, either on fact or law, reversing the Trial Court, for reasons that can be plausibly assigned. 31. This Court has no jurisdiction to interfere with the Lower Appellate Court's findings, either on fact or law, reversing the Trial Court, for reasons that can be plausibly assigned. 31. It is no doubt true that the first Appellate Court ordinarily ought to frame points for determination arising in the appeal, render decision thereon with reasons, going by the provisions of Order XLI Rule 31 of the Code, but the mere failure to frame points of determination would not lead to the judgment of the first Appellate Court being vitiated, if otherwise all effective findings of the Trial Court, on which the decree is based, are reversed with reasons assigned that are not perverse or manifestly illegal; or ones recorded ignoring material evidence, or still more, placing reliance on some irrelevant evidence. 32. The insistence of the learned Counsel for the plaintiff on the necessity to frame points for determination, which has not been done in this case by the Lower Appellate Court, is largely inspired by the guidance of the Supreme Court in Malluru Mallappa (supra), where it has been held by their Lordships: “13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 ] , Madhukar v. Sangram, (2001) 4 SCC 756 ] [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243 ] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259]]. 14. 14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. 18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.” (emphasis by Court) 33. The decision in Malluru Mallappa arose from a suit for specific performance of contract. The Trial Court had held against the plaintiff on issues of readiness and willingness as also the issue of limitation, on the foot of which, the suit was dismissed. The first appeal came up before the High Court, about which, their Lordships observed that the appeal was dismissed by a cryptic order without reappreciating evidence of parties or recording a reasoned order. There is also a remark that the case of the plaintiff was that the suit was well within limitation under Article 54 of the Schedule to the Limitation Act, 1963, but that question too was not examined in the proper perspective. It is in the background of these facts that the remarks of their Lordships about adherence to the requirement of Order XLI Rule 31 of the Code, including that mandating the first Appellate Court to frame points of determination, were made. 34. In H. Siddiqui (supra), the remarks, on which much reliance has been placed by the plaintiff, figure in Paragraph No.21 of the report. These read: “21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. 34. In H. Siddiqui (supra), the remarks, on which much reliance has been placed by the plaintiff, figure in Paragraph No.21 of the report. These read: “21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh v. Kalyan Singh [ AIR 1963 SC 146 ] , Girijanandin Devi v. Bijendra Narain Choudhary [ AIR 1967 SC 1124 ] , G. Amalorpavam v. R.C. Diocese of Madurai [ (2006) 3 SCC 224 ] , Shiv Kumar Sharma v. Santosh Kumari [ (2007) 8 SCC 600 ] and Gannmani Anasuya v. Parvatini Amarendra Chowdhary [ (2007) 10 SCC 296 : AIR 2007 SC 2380 ].)” 35. The appeal before their Lordships in H. Siddiqui again arose out of a suit for specific performance of contract, where the suit agreement had been entered into on behalf of the defendant by his power of attorney holder. The agreement was registered and the plaintiff's case was that the defendant failed to take necessary steps in furtherance of the agreement. The appeal before their Lordships in H. Siddiqui again arose out of a suit for specific performance of contract, where the suit agreement had been entered into on behalf of the defendant by his power of attorney holder. The agreement was registered and the plaintiff's case was that the defendant failed to take necessary steps in furtherance of the agreement. Amongst other pleas, the defendant denied the execution of the power of attorney in favour of his brother, who entered into the suit agreement on his behalf. The defendant's case was that the power of attorney had been given with a limited authority for the management of property. It did not authorize the attorney to alienate. The Trial Court had held the power to be a valid authority for alienation in favour of the plaintiff on ground that the defendant had admitted his signatures on the power of attorney, when a copy thereof was shown during cross-examination. The inference drawn by the Trial Court was that the execution of the power in favour of his brother being admitted by the defendant, there was an admission by him as to the fact of execution of the document. Their Lordships were of opinion that the Trial Court could not draw that inference validly for reason that the defendant had merely admitted his signatures on the photocopy of the power, but not the contents. It was also observed by the Supreme Court that the Court should have borne in mind that the admissibility of a document is different from its probative value. It was in the context of these facts that about the two points of determination formulated by the High Court, while hearing an appeal from the original decree, it was observed in H. Siddiqui: “20. It was in the context of these facts that about the two points of determination formulated by the High Court, while hearing an appeal from the original decree, it was observed in H. Siddiqui: “20. The High Court failed to realise that it was deciding the first appeal and that it had to be decided strictly in adherence with the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called “CPC”) and once the issue of the alleged power of attorney was also raised as is evident from Point (a) formulated by the High Court, the Court should not have proceeded to Point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property.” 36. It was in the context of remarks in Paragraph No.20 of the report in H. Siddiqui that the latter remarks in Paragraph No.21 came to be made. To the understanding of the Court, it was not meant to be laid down as an ironcast formula that the formality to frame points of determination by a Court of first appeal would always lead to the judgment being vitiated. Rather, the facts in H. Siddiqui show that the High Court, sitting as the Court of first appeal, did frame two points of determination (a) and (b) and yet failed to address the vital distinction, amongst others, on one hand about the scope of the power given by the defendant to his brother, on the foot of which he had executed the suit agreement involved there and the fact of its execution per se on the other. What, therefore, really seems to be the law about the necessity of framing points for determination is that generally these ought to be framed by a Court of first appeal, but even if these are not, a Court of first appeal must be alive to all that is substantially an issue between parties and must pronounce on all issues arising between parties necessary to render judgment. In doing so, a Court of first appeal must do a wholesome review of evidence as much as necessary to vary, affirm, reverse or modify the findings of the Trial Court. In doing so, a Court of first appeal must do a wholesome review of evidence as much as necessary to vary, affirm, reverse or modify the findings of the Trial Court. In short, the Court of first appeal has to undertake a wholesome review of the case of parties, examining all evidence on record bearing on the issue, about which the parties are at variance. In this connection, reference may be made to the decision of the Supreme Court in G. Amalorpavam (supra), where the substantial question of law involved in the second appeal before the High Court was formulated in terms, as noticed by their Lordships in Paragraph No.3 of the report. It reads: “3. At the time of admission of the second appeal the following question was framed for determination: “Whether the lower appellate court is correct in deciding the appeal without any points for determination as contemplated under Order 41 Rule 31 CPC?”” 37. The issue in G. Amalorpavam arose before their Lordships in the context of a suit for possession and recovery of arrears of rent and damages. The suit was decreed by the Trial Court and affirmed on a first appeal being carried to the subordinate Judge from the Munsif's decree. Their Lordships in the context of the substantial question of law quoted in Paragraph No.3 of the report, held on the necessity of framing points for determination by the Court of first appeal: “9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non compliance with the provisions 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. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” (emphasis by Court) 38. On the issue under consideration, reference may be made to the decision of the Gujarat High Court in Bharatkumar Dhanajibhai Kuber v. Markand Umedlal Joshi, 2018 SCC OnLine Guj 3114, where the principle has been laid down thus: “34. Thus, the principle discernible from the case law referred to above, is that whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 of the CPC has to be determined on the nature of the judgment delivered. Non-compliance with the provisions by itself would not vitiate the judgment and make it wholly void. Non-compliance with the provisions by itself would not vitiate the judgment and make it wholly void. If it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. The judgment of the appellate Court should reflect an honest endeavour to consider the controversy between the parties and that there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations. If all relevant aspects of the matter are gone into by the appellate Court and discussed properly, then the same would be a valid judgment even though it may not have framed the points for determination.” (emphasis by Court) 39. Taking up the other substantial question marked (B), it has to be seen if in fact the Lower Appellate Court, while reversing the Trial Court, has effectively set aside its findings on relevant issues sufficient to reverse the decree. The Lower Appellate Court has thought that the entire gamut of controversy, on which the edifice of the suit rests, is wholesomely covered by Issues Nos.4, 5, 8 and 9. Now, if those four issues indeed encapsule the entirety of controversy, that has arisen between parties, is a matter to be seen by this Court in order to form an opinion if the Lower Appellate Court has effectively reversed all relevant findings by the Trial Court. The suit is essentially about the defendant's right, the defendant being admittedly a tenant of the plaintiff in the shop in question, to raise a temporary structure on the suit property, abutting the said shop on its northern side. The plaintiff has said that the temporary structure raised by defendant No.3 damages the frontage of the shop in question and blocks its access to the highway. 40. It is also the plaintiff's case that the suit property, where the temporary structure has been erected by defendant No.3, is the plaintiff's appurtenant land, because enabling as it does ingress and egress to the shop in question, it is necessary for its beneficial use. The construction raised on the suit property by the third defendant has also been claimed to diminish the value of the shop in question. The construction raised on the suit property by the third defendant has also been claimed to diminish the value of the shop in question. There is also a cause of action pleaded by the plaintiff on account of waterlogging in front of the other shops owned by the plaintiff on account of the offending constructions raised on the suit property. The last of the grounds, claimed by the plaintiff to support the case for a mandatory injunction, does not appear to have been suited by parties, as there is no finding about it by the Courts below. The plaintiff essentially pleaded a cause of action against the State and the Municipal Board, saying that the suit property is located over land which is parti, where the temporary construction has been raised without a permission by defendant No.2, the Municipal Board, Kalpi. The land vests in the State and managed by the Municipal Board, therefore, defendant Nos.1 and 2, that is to say, the State and the Municipal Board, in particular, the Municipal Board, ought to remove the constructions by taking out statutory proceedings under the Act of 1916. At the commencement of the suit, there was no relief claimed against defendant No.3 at all. The mandatory injunction was claimed against defendant Nos.1 and 2, in particular, defendant No.2, the Municipal Board, to remove the offending construction comprising the suit property, denoted by letters ABJK. Later on, on better advice, defendant No.3 was impleaded to the suit and the injunction claimed against him as well. 41. Issue No.4 is about the fact if the suit property constitutes the frontage of the shop in question, whereas Issue No.5 is about the fact if the suit property is land appurtenant to the said shop. Issue No.8 is to the effect if the plaintiff's suit is maintainable, whereas Issue No.9 is about the plaintiff's right to access the National Highway, located to the north of the shop in question from all directions. One of the principal controversies that has permeated the issues, on which the parties went to trial, is whether the shop in question has its access to the north and south both, or it is to the south alone and not the north. 42. The Trial Court took up Issues Nos.4 and 5 together, and as already noticed, answered them for the plaintiff. 42. The Trial Court took up Issues Nos.4 and 5 together, and as already noticed, answered them for the plaintiff. In answering both these issues, the Trial Court proposed to look into the testimony of Abdul Rehman, examined as PW-1, the plaintiff's husband. The Trial Court has devoted much of its wisdom to the admissibility of this witness's testimony, because he died before defendant No.3 could cross-examine him. The Trial Court held that the witness testified on 06.04.1989 and 29.01.1996 and was also cross-examined by defendant Nos.1 and 2. However, defendant No.3 did not cross-examine him on those dates, where it is written 'nil' in the column of cross-examination. Opportunity was given to defendant No.3 to examine Abdul Rehman, but before it could come, he died. The witness's testimony has, therefore, been held relevant under Section 33 of the Indian Evidence Act, 1872, but not much of that testimony has been discussed or inference based on it. The Trial Court has founded most of its reasoning on the admitted facts that defendant No.3 is a tenant in the shop in question, who has asserted that he uses the suit property for ingress and egress and access to the shop. His rights to access are limited to the nature of his estate in the shop in question, which is admittedly a tenancy. 43. The Trial Court has believed the testimony of DW-3 that he uses the suit property as his frontage and for the purpose of access to his shop. This is a right of the landlord, according to the Trial Court, which he is using so long as he is the tenant. The Trial Court has also relied on the pleadings of defendant Nos.1 and 2, that defendant No.2 realizes tehbazari from defendant No.3 for the use of the land comprising the suit property. The inference drawn is that it could be only so if defendant No.3 had an easementary right or his frontage necessary for ingress and egress. The testimony of PW-3 has also been considered to the effect that he sells sweetmeats orienting his counter to the north, that is to say, the northern side of the suit property. The testimony of DW-3 has also been noticed to the effect that his customers approach his shop from the highway, that is to say, the northern face of the shop in question. The testimony of DW-3 has also been noticed to the effect that his customers approach his shop from the highway, that is to say, the northern face of the shop in question. From the fact of levy of tehbazari, the Trial Court has drawn the conclusion that defendant No.3 utilized the suit property to begin with for his convenience, and later on, as the frontage of the shop in question as well as for access, ingress and egress. It has also been held that the land comprising the suit property is land appurtenant to the shop in question and used as its frontage. The Trial Court has, more or less, held that these rights appertain to the shop in question and belong to defendant No.3 so long as he is the tenant. Else, these are the rights of the plaintiff, who is the owner and the landlord. There being much issue between parties if indeed the suit property serves as frontage of the shop in question, necessary for ingress and egress, and used as land appurtenant to it, the Lower Appellate Court has looked into the sale deed of 15.09.1975, by which four shops were sold by Mustaq Ali to the plaintiff. 44. Upon a perusal of the said sale deed, paper No.20-Ka, the Lower Appellate Court has recorded a finding that the sale deed indicates the boundaries of the shop sold by Mustaq Ali to the plaintiff. The northern boundary of the shop shows land, described as parti, and to the south, the boundary shown is a road. The Amin Commissioner's report, paper No.50-Ga too has been considered on the point. The Commissioner's report shows to the south the road and to the north the suit property. The Lower Appellate Court has concluded from these documents that the shops purchased by the plaintiff from Mustaq Ali vide registered sale deed dated 15.09.1975, had their frontage to the south, and to the north, there is land classified as parti. Both parties, according to the Lower Appellate Court, are ad idem on the issue that the land to the north, described as parti, vests in the State. None of the parties has a right in or to it, until the State Government confers or grants such a right. The Lower Appellate Court has held that on this ground, the suit is not maintainable. 45. None of the parties has a right in or to it, until the State Government confers or grants such a right. The Lower Appellate Court has held that on this ground, the suit is not maintainable. 45. This particular finding has come in the course of the Lower Appellate Court disposing of Issue No.8. We may say that while the findings about the boundaries of the shop in question and the inference drawn from it about the frontage of the shop may not be very wrong, as would be further elucidated in this judgment, but to say that the suit is not maintainable, is certainly a finding that this Court cannot approve. It is manifestly illegal. There is always a subtle distinction between the maintainability and sustainability of an action. Maintainability refers to that state of things, where the action brought on account of some bar created by law or otherwise is not triable. If, however, the action is triable, but by evidence, it cannot be proved, it cannot be said to be not maintainable. It has to be regarded as not sustainable, that is to say, a case which the plaintiff has not been able to establish at the trial; not one which was not triable at all. 46. There are further findings by the Lower Appellate Court to the effect that the plaintiff purchased the property in question through the registered sale deed dated 15.09.1975, and defendant No.3 is a tenant in the said shop. It has been recorded that it is admitted fact that the shop in question has its door oriented to the south and there is a road to the south, whereas to the north, the boundary shows it to be land i.e. parti, vested in the State and managed by the Municipal Board, defendant Nos.1 and 2. There is a further finding that the earlier findings while dealing with Issue No.8 would lead to the conclusion that the shop in question does not have access on all sides and the frontage is to the south, whereas to the north, the land is Nazul. There is also a finding to the effect that the evidence shows that earlier defendant No.3, before he raised the temporary structure, comprising the suit property, would sit on his shop, facing the east and receive his customers on that side. There is also a finding to the effect that the evidence shows that earlier defendant No.3, before he raised the temporary structure, comprising the suit property, would sit on his shop, facing the east and receive his customers on that side. Now, the suit property, the temporary structure, that he has put up, enables him to receive customers from the Kanpur-Jhansi Highway, for which he pays tehbazari to defendant No.2. The Lower Appellate Court has held that the right to remove the structure erected on the northern side of the shop in question, can be removed by defendant Nos.1 and 2, but not at the instance of the plaintiff. This is so because the shop in question, belonging to the plaintiff, does not have its frontage or a right of ingress and egress to the north. The plaintiff has been held not to have a right of way on all sides of the shop in question, but only to the south. 47. Elaborating these findings, while discussing Issues Nos.4 and 5, apart from looking into the sale deed dated 15.09.1975 executed in the plaintiff's favour by Mustaq Ali, the Court has also looked into the Nazul Patta, paper No.19-Ka of the year 1958. The Lower Appellate Court has recorded a finding that this Patta shows that to the north is shown land that is parti. On the basis of the title documents relating to the shop in question, the Lower Appellate Court has recorded plausible findings with reference to its boundaries that the plaintiff has no right of frontage or appurtenance over the suit property, which vests in the State. The Lower Appellate Court has affirmed the finding of the Trial Court that the temporary structure raised over the suit property by the defendant is illegal. But, the right to remove it vests in defendant Nos.1 and 2 and not the plaintiff. The reason assigned is that it is neither the frontage of the shop in question owned by the plaintiff nor land appurtenant to the said shop, that is to say, land necessary for its beneficial enjoyment. The shop in question has its access to the south, where it has a door and there is a public road, passing next to it. Therefore, the Lower Appellate Court, on the basis of documentary evidence and for very valid reasons, has reversed the findings of the Trial Court. 48. The shop in question has its access to the south, where it has a door and there is a public road, passing next to it. Therefore, the Lower Appellate Court, on the basis of documentary evidence and for very valid reasons, has reversed the findings of the Trial Court. 48. This Court may remark at this juncture that the original records, when summoned from the Trial Court, led to a most surprising report that Files "C1, C2 and D" were destroyed and the record keeper was not aware about the precise date of destruction/ weeding out of this record. File “A” alone was available. Some directions were issued about destruction of records vide order dated 22.09.2021 and by the same order, the weeded out/ destroyed record was directed to be reconstructed. We have, therefore, before us records comprising Files “C1, C2 and D”, that is reconstructed, being photostat copies etc., duly authenticated by the District Judge, Jalaun ar Orai. File 'A' carries whatever record is there in original. 49. We have looked into the sale deed dated 15.09.1975 executed by Mustaq Ali in the plaintiff's favour and find an elaborate description of boundaries with dimensions of the four shops sold. The northern boundary shows land that is parti, whereas the south boundary shows a road or way, described in Hindi as 'Rasta'. In the Patta, relating to the land on which the shops in question were constructed, dated 05.06.1958, executed by the Governor of Uttar Pradesh in favour of Mustaq Ali, the plaintiff's vendor, a document admitted by the plaintiff by an endorsement to its face, would show that the boundaries of the land on which the shops were constructed, including the shop in question, are: to the north, land, that is parti; and to the south, a road. The eastern boundary shows shop of Hafiz Kallu and shops of Dr. Haji Nazir. The western boundary shows again land that is parti. A perusal of the said document re-enforces the findings recorded by the Lower Appellate Court, drawing a plausible conclusion on documentary evidence to reverse the findings of the Trial Court to the contrary, that are based entirely on parole and circumstantial evidence. Haji Nazir. The western boundary shows again land that is parti. A perusal of the said document re-enforces the findings recorded by the Lower Appellate Court, drawing a plausible conclusion on documentary evidence to reverse the findings of the Trial Court to the contrary, that are based entirely on parole and circumstantial evidence. The Lower Appellate Court is the last Court of fact and it cannot be said that the inferences drawn by it on the issues arising between parties, particularly, Issues Nos.4, 5, 8 and 9 are perverse in any manner. This Court does not have the jurisdiction to re-appreciate evidence under Section 100 of the Code and substitute a view of our own based on pure appreciation of evidence, unless there be some perversity or manifest illegality. Far from that in point here, a very reasonable view of the evidence has been taken by the Lower Appellate Court. 50. In the circumstances, Substantial Question of Law (A) is answered in the manner that the Lower Appellate Court has substantially complied with the requirements of Order XLI Rule 31 of the Code and Substantial Question of Law (B) is answered in the negative, holding that the Lower Appellate Court has not committed any illegality in reversing the decree passed by the Trial Court, which it has done after setting aside findings of the Trial Court on all relevant issues, based on cogent reasoning. 51. So far as Substantial Question of Law (C) is concerned, evidence has been adequately appreciated by the Lower Appellate Court to come to the conclusion that the plaintiff does not have a right of frontage or access to the public road on the northern side, as the frontage of the shop in question, in the documents of title produced by the plaintiff, lies to the south of the said shop. To the north, there is land described as parti. The Lower Appellate Court has opined that no doubt defendant No.3 has no right to put up a temporary structure there on land that belongs to defendant No.1 and managed by defendant No.2, but that infraction does not afford a cause of action to the plaintiff to sue for mandatory injunction against defendant No.3, seeking removal of those unlawful construction. The said right is vested in defendant Nos.1 and 2. The said right is vested in defendant Nos.1 and 2. Since the evidence shows, as concluded by the Lower Appellate Court, that there is no frontage of the shop in question on the northern side, there is no deprivation of the plaintiff's rights of access to the public road on that side. The plaintiff may have had a cause of action to object to the temporary construction raised on the northern side of the shop in question, but he has not been able to prove his case, either of frontage or an appurtenance of that land enjoyed by virtue of ownership of shop in question. These findings have been recorded by the Lower Appellate Court on the basis of cogent evidence, about which there is no perversity. 52. Substantial Question of Law (C) is, therefore, answered in the negative and against the plaintiff. 53. In the result, this appeal fails and is dismissed with costs throughout. 54. Let a decree be drawn up accordingly. 55. Let the records be returned to the Trial Court by the Registry.