MOHD FAROOQ Vs. ZARIF AHMAD

JUDGEMENT

(1.) THE dispute in the present appeal is between the two brothers. One of the brothers Mohd. Farooq, the plaintiff-appellant had instituted a suit against his other brother Zarif Ahmad, defendant-respondent No. 1 and his son Zameer Ahmad, defendant-respondent No. 2 for permanent injunction in respect of property described at the foot of the plaint by letters Ka, Kha, Ga, Gha, Cha, Chha having Nagar Panchayat, Behat No. 358 on the allegations that he is the owner in possession of the same for the last 30 to 35 years on which exist his one 'pacca' room and trees. THE defendants-respondents contested the suit denying the plaint allegation and alleging that the plaintiff is neither the owner nor is in possession of the same. THE land was a vacant land and the defendants have occupied the same since before the abolition of Zamindari and are living therein by constructing a 'kachcha' house. THE suit was decreed by the Court of first instance holding that the plaintiff is the owner in possession of plot No. 358 and the land in dispute is part of it. THE defendants are owners of plot No. 357 and their house also exists on the said plot. Aggrieved by the judgment, order and decree of the trial Court, the defendants preferred a civil appeal. In the civil appeal three additional issues were framed and ultimately the appeal was allowed and the suit has been dismissed. THE appellate Court apart from holding that the disputed land is not identifiable, reversed the findings of the Court of first instance and held that the plaintiff has failed to prove his title or possession on the disputed land and as such is not entitle for any decree for permanent injunction. Thus the plaintiff has come up in this second appeal challenging the judgment, order and decree of the lower appellate Court. I have heard Sri A. K. Singh, learned counsel for the plaintiff-appellant and Sri Mohd. Arif, counsel for the respondents and with their consent proceeds to decide the appeal finally on merits. It may be relevant to note that the Court vide order dated 4. 3. 2008 had framed one of the substantial questions of law involved in the appeal without formally admitting the appeal. THE substantial question of law so framed runs as under : "that certain additional issues were framed by the appellate court and these issues were not remitted to the trial court for recording the finding of fact after recording the evidence of the parties on these additional issues". THE first submission of the learned counsel for the appellant is that the three additional issues framed by the lower appellate Court were required to be remitted to the trial Court for the purpose of adducing evidence and then to record findings thereof, which procedure had not followed by the lower appellate Court and therefore, the the judgment and order of the lower appellate Court stands vitiated under law. THE lower appellate Court had framed the following three additional issues in appeal : 1. D;k okn xzlr leifrr eksds ij f'kuk[r gksus ;ksx; ugha gs \ ;fn gks rks izhkko \"

(2.) D;k izr;fkhz and oknh oknxzlr leifrr dk Lokeh gs vksj mlij dkfct gs \"

(3.) D;k okn vuko';d i{kdkjks dk dqla;kstu dk nks"k" gs \"