AMRIT LAL ALIAS KHACHERU Vs. HUKAM CHAND

JUDGEMENT

(1.) This Regular Second Appeal involves a very short point. The respondent had instituted a suit claiming a mandatory injunction against the appellant to remove the tea stall and sheds alleged to have been erected on the said respondent's land. The suit brought by the respondent was decreed by the trial court and the dependent thereupon appealed to the Additional Senior Subordinate Judge, Delhi. Among the issues framed by the trial court were the following :- Whether the defendant has become owner/Bhumidar with respect to the land in dispute under the Delhi Land Reforms Act ? The other issues are not material at this stage.

(2.) At the hearing of the appeal before the Additional Senior Subordinate Judge, it was pointed out by the counsel for the respondent that the appellant there had not challenged the correctness of the findings of the learned Subordi- nate Judge on any other issue except Issue No. 4, and therefore, the decision of the learned Subordinate Judge on all the other issues should be accepted as correct and, therefore, incapable of challenge in appeal. The learned Additional Senior Subordinate Judge followed Wadhwan Singh and Aw. v. Sunder Singh and others, A.I.R. 1922, Lahore 182, and came to the conclusion that the only issue capable of challenge was issue No.4 and even on that Issue the finding that the defendent was a trespasser in respect of the tea stall barred the appellant agitating that he was a Bhuinidar or owner of the land in dispute. Accordingly, the appeal was dismissed chiefly on the ground that the appellant's counsel was careless and negligent in drafting the grounds of appeal.

(3.) The defendant has now come to this Court in second appeal and the correctness of the decision of the Additional Senior Subordinate Judge is impugned on the ground that there has been a mis-reading of the memorandum of appeal. I have been referred to the memorandum of appeal and find that the contentions of the appellant are entirely correct. In the first ground, the appellant had stated that the judgment was against facts and law; in the second ground, that the Judgment was arbitrary, illegal, ultra vires and contrary to the facts on record; in the third ground, that the learned lower court had given more weight to the plaintiff's evidence and ignored the evidence of the defendant; in the fourth ground, the decision on issue No. 4 was challenged, in the fifth ground, the decision on issue No. 1 was challenged; in the sixth ground, it was stated that the land was agricultural land and governed by the Delhi Land Reforms Act; in the seventh ground, it was stated that the appellant had been in possession for more than three years and thus could not be evicted; in the eighth ground, it was contended that the appellant had never been a licensee and the trial court had based its judgment on surmises in this behalf; in the ninth ground, it was stated that the trial court had no authority to decide that the plantiff was a Bhumidar and this was a matter only within the juris- diction of the Revenue Court and in the tenth ground, it was stated that the learned lower court's judgment was arbitrary, illegal and partial. It is, therefore, clear on a reading of these grounds that the appeal was not confined to the decision on Issue No. 4 alone.