GHULAM RASOOL Vs. SHARIEF

JUDGEMENT

(1.) The plaintiff is in appeal against the judgment of the 1st Appellate Court. The appeal was admitted on 26.07.2019 for consideration of the following substantial question of law:

(2.) Mr. V. R. Wazir, learned senior counsel appearing for the appellant submitted that the suit was filed by the appellant for declaration as owner of the land in dispute and further for decree of permanent prohibitory injunction restraining the defendants from interfering in the possession of the appellant. The suit was decreed by the Trial Court. However, the lower appellate court, though found that the appellant is owner of the property in dispute, however, since he was not found to be in possession and the relief for possession had not been claimed, the suit was dismissed.

(3.) Referring to a Division Bench judgment of Punjab High Court in Union of India v. Pearl Hosiery Mills, AIR 1961 Punj 281, it was submitted that if the lower appellate court was to come to a finding that the appellant was not in possession of the property and relief for possession had not been claimed in suit, opportunity should have been afforded to him to amend the suit, to seek the relief of possession as well. It is for the reason that the Trial Court had decreed the suit in totality and it was found that the appellant was in possession of the property in dispute. The defendants were restrained from interfering in the possession of the appellant. While referring to the judgment of Hon'ble the Supreme Court in H Siddiqui (D) By Lrs. v. A. Ramalingam, (2011) 4 SCC 240, it was submitted that while dealing with appeals the Appellate Court is bound to consider all the issues and the evidence led by the parties. The findings are to be recorded on all the issues while appreciating the evidence. But the learned court below has failed to adhere to those principles. Hence, the judgment of the learned lower Appellate Court deserves to be set aside.