BHERU Vs. BALA

JUDGEMENT

(1.) THIS is a second appeal filed under section 100 of CP. Code by defendant against the judgment and decree, dated 3.10.1983, passed by learned 1st Additional District Judge, Shajapur in C.A. No. 77 -A of 1983, which in turn arises out of Civil Suit No. 169 -A of 1977, decided by Civil Judge, Class II, Susner, on 12.11.1981. It was admitted for final hearing on following two substantial questions of law : - -

(2.) HEARD Shri B.L. Pavecha, learned senior counsel with Shri K. Sajonia, learned counsel for the appellants and Shri N.P. Pande, learned counsel for the respondents.

(3.) LEARNED counsel for the appellant in the first instance contended that by virtue of section 131 read with section 257 of MPLR Code, the suit of such nature is not maintainable. It is hit by these two provisions and hence, remedy of plaintiff was to approach Tahsildar under section 131 ibid rather than to file suit. I do not agree to this submission. Firstly, no such plea was ever raised by the defendant in the written statement and as a consequence, no issue was framed much less finding returned by trial Court and first appellate Court. Secondly, no substantial question of law was framed on the point of maintainability of suit with reference to section 131 read with section 257 of MPLR Code. It is a settled rule of law so far as second appeals are concerned that second appeal is heard only on the substantial question of law framed and not on the questions which are not framed. In view of these admitted legal position emerging from the record of the case, I am unable to entertain this legal submission at this second appellate stage for the first time.