PREM CHANDRA SINGHAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) There are certain circumstances, under which, the Court at times is also cornered from taking any particular specific view while adjudicating a lis between the parties and that difficulty is, particularly, faced by the Courts, while exercising its superior power of Appeal, as vested in it under Sec. 100 of the C.P.C., particularly, when the issue, which otherwise ought to have been a subject matter of determination of the controversy under Sec. 9 or 96 of Code of Civil Procedure is either not considered by the Trial Court or the Appellate Court, then, while exercising the powers under Sec. 96 of the C.P.C., in such cases, the Second Appellate Court is constraint that the Second Appellate Court could not have substituted the finding beyond the finding, which has been recorded by the Trial Court or the Appellate Court, while adjudicating a lis, as it is settled law that the Second Appellate Court cannot travel beyond the case as pleaded and argued before the Courts below and, which has been taken into consideration while deciding the case.

(2.) This is one of those peculiar case, dealing with the peculiar circumstance, which has chanced in the present Second Appeal. Though, this Court despite of being conscious of the fact that the suit itself, which has been instituted by the plaintiff/appellant, herein, being Suit of 1979 was registered as Suit No. 61 of 1979, Prem Chandra Singhal Vs. State of U.P. and others, which was instituted as back as on 10/3/1979, wherein, the plaintiff/appellant has sought a relief in the nature of a decree of mandatory injunction as against the defendants/respondent, herein, to the effect that by the decree to be rendered by the Court, they may be evicted from the property, in question, and after the removal of the construction, which has been raised by the defendant/respondents, over the dispute land, they may also be directed to hand over with the vacant possession of property, which as per the plaint averments is shown to be detailed in appendix-2, in the description of the property as given in the plaint, which the plaintiff/appellant claims to have acquired his rights over it, in pursuance to the sale deed dtd. 8/3/1977, executed and registered in his favour, wherein, he contends that he has purchased a piece of land, lying in khasra No. 71/3, having an area of 3350 square yard, i.e. equivalent to about 0.69 acres situated in village Rishikesh, Pargana Parwadoon, Dehradun. The boundaries of the property in dispute for which the relief was sought by way of a suit for mandatory injunction was described at the foot of the plaint, which is quoted hereunder :-

(3.) It was the case of the plaintiff/appellant in the suit, that it was the property, which was falling to be within the area of the property, which was purchased by him by the sale deed dtd. 8/3/1977, under the strength of which, he contends that the sale deed, which was executed in his favour on 8/3/1977, it was based on the agreement for sale, which was executed by the predecessors/owners in favour of the plaintiff/appellant on 4/3/1977, and as a consequence of the execution of the sale deed, he was placed in possession over the property, in question. The case of the plaintiff/appellant in the Suit, was that when he was out of town in relation to his business purposes and when he returned back on 9/3/1979, he found that the construction of Export Forest Chowki was put under construction at the behest of and on instruction of the defendants/respondents and that gave him a cause of action to institute the Suit before the learned Trial Court for grant of the decree of the following nature:-