MOHINDER SINGH Vs. CHARAN DASS

JUDGEMENT

(1.) The predecessor in interest of pro -forma respondents No. 2 to 4 and proforma respondents No. 5 and 6 were the plaintiffs, whereas, respondent No.l was the defendant and proforma respondents No. 7 and 8 were the proforma defendants and they will be referred to as such in this judgment. During the pendency of the appeal before the first appellate court the plaintiffs and proforma defendants sold the land in dispute in favour of the present appellants by way of registered sale deed for valuable consideration of Rs.50, 000/ - only on 10.4.1992. Though, no formal permission has been sought or granted to the appellants to file the present appeal, yet in the absence of any objection by the plaintiffs or the defendant, the appellants are held entitled to maintain the present appeal as they have stepped into the shoes of the original plaintiffs. The land in dispute is measuring 27 -2 bighas comprised in khasra Nos. 20,21 and 22 situated in Chak Kui, Tehsil Rehru, District Shimla.

(2.) The appellants are aggrieved by the decree and judgment dated 22.6.1992 whereby the appeal of the defendant was partly accepted and decree and judgment dated 7.7.1987 of the trial court was set aside to the extent that the plaintiffs were in possession of the land in dispute and were entitled to a decree for permanent prohibitory injunction against the defendant. According to the first appellate Court, the plaintiffs have not been in possession of the land in dispute and not entitled to decree for permanent prohibitory injunction as prayed for. However, both the courts below have concurrently found the plaintiffs as owners of the land in dispute. Hence, the present regular second appeal.

(3.) This appeal was earlier allowed and the impugned decree and judgment of the first appellate court was set aside by judgment dated 13.10.1998, which was assailed by the defendant by filing S.L.P. before the Supreme court, which was granted and the following order was passed in the appeal: - "The short question that arises in this case is whether the High Court was justified in deciding the Second Appeal under Section 100 CPC without framing the substantial question of law. This Court in more than one occasion has held that the High court acquires jurisdiction to decide the Second Appeal only when it frames substantial question of law. In this case we find that the High Court has not framed any substantial question of law while deciding the matter. This is a sufficient ground to set aside the order and judgment under appeal. We order accordingly. The case is sent back to High court for deciding the same after framing the question of law if it arises in the case. The appeal is allowed. There shall be no order as to costs."