VISHWAMBHAR P GAONKAR Vs. VISHWANATH SINAI KHANDEPARKAR

JUDGEMENT

(1.) THIS second appeal is filed by the original defendants. The plaintiffs filed Regular Civil Suit No. 144/92/b for a declaration and injunction. The trial Court held that the plaintiffs are owners of half of the property, but since the plaintiffs had not identified the property the prayer for injunction was rejected. The trial Court however returned the finding that defendants 1 and 2 have no right, title and interest in the suit property. The plaintiffs carried an appeal to the court of IInd Adhoc Addl. District Judge, Panaji being Regular Civil Appeal No. 158/2004. The learned Judge declared that the plaintiffs are owners of the suit property and he restrained defendants 1 and 2 from interfering with the possession of the plaintiffs of the suit property. Being aggrieved by these judgments, the defendants have preferred this second appeal.

(2.) I have heard the learned counsel for the parties. The learned counsel for the appellants/defendants made a serious grievance that the first appellate court has without following the procedure under Order 41, rule 31 of the Code of Civil Procedure (Code for short) and without formulating or framing the points decided the appeal. He contended that there is no indication in the judgment that the learned Judge has considered the arguments advanced by the learned counsel for the parties in the light of the evidence on record. He submitted that the learned Judge has travelled beyond the scope of the plaint. While the plaintiffs had prayed for a declaration that the plaintiffs are owners of half portion of the suit property, the learned Judge has declared them to be owners of the entire property. According to the learned counsel substantial questions of law are involved in this appeal. In support of his contention, the learned counsel relied on Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179.

(3.) MR. Lotlikar, learned counsel for the plaintiffs, on the other hand, submitted that it is true that the first appellate court has not framed points. But on that count alone, it cannot be said that there is no proper consideration of the issues involved in the case. He submitted that a perusal of the judgment of the first appellate court would show that the learned Judge has reproduced the arguments of the counsel; he has referred to the evidence and given his verdict. There is indeed a substantial compliance of the provisions of Order 41, rule 31 of the Code. In support of his submission the learned counsel relied on G. Amalorpavam and others v. R. C. Diocese of Madurai and others (2006) 3 SCC 224.