BASHIRODDIN MOHAMMAD AFAZAL Vs. NASRUDDIN MOHAMMAD FAJAL MUJAWAR

JUDGEMENT

(1.) This appeal was heard for admission on 09.08.2011 and this Court was pleased to issue notice to the respondents which was made returnable on 23.09.2011. Thereafter, the matter was heard from time to time. By order dated 20th December, 2011, the record and proceedings were called and accordingly the record and proceedings are received by the Registry. Those are placed for perusal before this Court. At the outset the Counsels appearing for the parties submit that this Second Appeal can be disposed of finally at the admission stage.

(2.) Learned Counsel appearing for the appellants submits that the Lower Appellate Court reversed the findings of the Trial Court without framing all points for its consideration/determination. The point of limitation which was specifically dealt with by the Trial Court was not framed by the Lower Appellate Court. It is submitted that in view of authoritative pronouncement of the Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs., 2001 AIR(SC) 965., the Appellate Court is duty bound to frame all necessary points for consideration/determination. However, in the instant case the point of limitation was not framed by the Lower Appellate Court. It is further submitted that the Lower Appellate Court while reversing the findings of the Trial Court has ordered and declared that the appellant is owner and is in possession of 74 x 32 ft. in Municipal House No.9-5 (1134). It is specific contention of the Counsel appearing for the appellants that the application at Exh.42 was filed by the plaintiffs i.e. appellants before the Lower Appellate Court for amendment of the plaint. Said application was allowed by the Lower Appellate Court on same day without affording opportunity of hearing to the respondents therein and on next day final judgment is pronounced. According to learned Counsel appearing for the appellants, in original plaint the declaration was sought by the plaintiff for area 74 x 64 ft. However, before the Appellate Court, application was filed at Exh.42 for correction of said area from 74 x 64 ft to 74 x 32 ft. However, without giving any opportunity to the appellants who are original defendants, said application is allowed on same day. That caused great prejudice to the appellants. If the Lower Appellate Court wanted to allow said application, it should have been done after due notice to the respondents and after giving them opportunity to put- forth their contention. Learned Counsel further argues that even after such application is allowed, in the light of amended plaint, the issues were required to be re- casted. However, such procedure has not been followed by the Lower Appellate Court. It is further submitted that the Trial Court after taking into consideration entire evidence placed on record has taken a view that the plaintiff has failed to prove his title over the suit property. No documentary evidence was placed on record to show that the plaintiff has valid title over the suit property. The Trial Court after assessing evidence placed on record, which was only in the nature of tax receipts by Municipal Council has reached to the conclusion that the plaintiff did not produce on record any satisfactory evidence showing his title over the suit property. Learned Counsel further argues that so far the prayer for declaration is concerned, witnesses who were examined by the plaintiff have deposed that the suit property had taken on rent by the plaintiff from the defendant. According to learned Counsel appearing for the appellant, in absence of satisfactory evidence on record and without framing points for its adjudication the Lower Appellate Court was not correct in reversing the findings of the Trial Court and therefore this Second Appeal deserves consideration.

(3.) On the other hand, learned Counsel appearing for the respondents herein who are original plaintiffs, invited my attention to Exhs. 95 to 109, which formed part of original record and submitted that all these documents would clearly show that the original plaintiffs have continuously paid tax to the Municipal Council for House No. 9-5. It is further submitted that the relationship between the parties is not in dispute. Learned Counsel also tried to submit that there was some compromise between the parties in Civil Suit No. 89 of 1959 and the plaintiffs and respondents, perhaps their predecessors agreed to retain respective shares as stated in the said compromise. Accordingly the original plaintiffs are in possession of House No.9-5. The appellants herein who are defendants are in possession of House No.9-6. Therefore, according to learned Counsel appearing for original plaintiffs, the Lower Appellate Court while allowing the prayer of the plaintiffs for declaration of ownership and possession had taken into consideration the Municipal record and other documents for 20 to 25 years and then allowed the appeal. Therefore, this Court may not interfere in the impugned judgment and order. It is submitted that since the original plaintiffs are in possession of the suit property atleast for more than 20 to 25 years, as it is evident from the documents produced on record by the plaintiffs, the Lower Appellate Court has rightly accepted the case of the plaintiffs that by way of prescription also they have become owner of the suit property and they are in continuous possession. Therefore, this Court may not interfere in the findings recorded by the Lower Appellate Court. Therefore, according to learned Counsel appearing for the respondents herein the Second Appeal deserves to be dismissed.