DOODHNATH Vs. LAKHAN

JUDGEMENT

(1.) Present second appeal has been preferred assailing the judgment and decree dated 15-4-1977 passed by Lower Appellate Court whereby Civil Appeal No.92 of 1976 was allowed and judgment a decree dated 25-3-1976 passed by trial court was reversed.

(2.) Plaintiffs instituted suit No.62 of 1971 with the impetratory relief of permanent injunction restraining defendants from interfering with their possession over the land marked by letters Cha, Chha, Ja and Jha in the plaint map and also for closing northern door enumerated therein attended with further relief to restrain them to have ingress and egress through Sahan shown by letters Ba, Ya, Ra, and Sa on the ground that the land in suit was their own property which descended to them from their ancestors and further that the defendants had no right to interfere with the possession of plaintiffs. Defendants on the other hand repudiated plaint allegations in the written statement alleging that both the parties descend from common ancestors and that plaintiffs' case as contained in the plaint is wholly wrong. It was further averred by the defendants that they were owners of part of the land as indicated in the written statement and lastly it was claimed that the suit is liable to be dismissed.

(3.) The Court while admitting the appeal, gleaned following questions of law for determination, which are abstracted below. 1. Whether the impugned judgment of first appellate court is no judgment in the eye of law inasmuch as the same is in utter disregard and violation of Order 41, Rule 31 of C.P.C.? 2. Whether the first appellate court was justified in dismissing the suit on the theory of partition in the family whereas the defendants failed to adduce any evidence to the effect that the family was common and joint; that the land in question was the ancestral property of the family aria the same was acted upon by all the parties? 3. Whether the first appellate court erred in law in basing its judgment solely on the civil Court Amin's report (22-C) and the map (23-C), which was not proved in accordance with law and without production of aforesaid Amin as a witness in the evidence?