KANPUR DEVELOPMENT AUTHORITY Vs. GAFFAR

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 9.1.2001 passed by 17th Additional District Judge, Kanpur in Civil Appeal No. 376 of 1998 Gaffar Vs. Kanpur Development Authority and another. By the impugned judgment the first appellate court has allowed the appeal and set-aside the judgment and decree of trial court in O.S. No. 1552 of 1989 Gaffar Vs. Kanpur Development Authority and has decreed the original suit and restrained the respondents (defendants) from interfering in the peaceful possession of the appellant-plaintiff on the disputed property.

(2.) The brief facts are that respondent filed Original Suit No. 1552 of 1989 Gaffar Vs. Chairman, Kanpur Develpment Authority and another for permanent injunction. In the plaint it was alleged that plaintiff is absolute owner and landlord of field no. 797 ad-measuring 6 bigha 13 biswa situated in village Chandari, Kanpur Nagar, in pursuance of a will deed duly registered and the name of the plaintiff has been duly mutated in the revenue records of Khatauni for 1391 Fasli to 1396 Fasli as per order of Tehsildar dated 14.9.1987. The plaintiff is in peaceful possession upon the said land and has got his Pakka house therein which is in-existence for last more than forty years besides well, tomb and garden. The defendant no. 2 being a Cooperative Housing Society is not at all the owner and landlord of the disputed land. The defendant no. 2 by executing a fictitious sale deed is now approaching the field owned and possessed by the plaintiff to deliver the possession of the land of the plaintiff forcibly and illegally and for that purpose defendant no. 2 is making survey of the land owned and possessed by the plaintiff. Defendant no. 1 through his employees is also making survey. The defendants have no right, title or interest upon the land owned and possessed by the plaintiff and plaintiff is in lawful possession since long back and prior to that the predecessors in interest of the plaintiff were in peaceful possession without interruption.

(3.) Learned counsel for the appellant raised a preliminary argument that the judgment of appellate court is not consistent with the Provision of Order 41 Rule 31 C.P.C. No point for determination has been framed, hence, judgment is not valid judgment under the Provision of Order 41 Rule 31 C.P.C. Learned counsel on the aforesaid point cited Bhagirath Vs. Ram Chandra and others Second Appeal No. 43 of 1996 decided on 11.4.2019, and prayed that on the aforesaid ground the judgment and decree passed by the appellate court be set-aside and the matter be remanded back to the first appellate court for a fresh decision.