Rajendra and Another Vs Ram Sumer and Another

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Court No. - 4 Case :- SECOND APPEAL No. - 226 of 2024 Appellant :- Rajendra And Another Respondent :- Ram Sumer And Another Counsel for Appellant :- Hemant Kumar Mishra,Abhishek Mishra,Arti Ganguly

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Hon'ble Rajnish Kumar,J.

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Shri Hemant Kumar Mishra, learned counsel for the appellants assailing the judgment and decree passed by court's below submits that learned lower appellate court framed two issues, but without affording any opportunity for adducing evidence and complying the provisions of Order 41 Rule 25 C.P.C. dismissed the appeal, whereas it could not have been decided without opportunity for evidence on the same. He further submits that the issue as raised by the respondent-plaintiff was in regard to the demarcation of land, for which the proceedings are going on after remand by means of the order dated 04.06.2003 by the Board of Revenue, therefore, this issue could not have been decided by the court's below as it is barred under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951.

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Having considered the submissions of learned counsel for the appellants, I have perused the records.

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The appellate court after considering the pleadings of the parties and hearing made two points for determination as shown in paragraph 15 of the judgment of the appellate court. Order 41 Rule 31 of Civil Procedure Code provides the contents, date and signature of judgment, which is extracted hereinbelow:-

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"31. Contents, date and signature of judgment.

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The judgment of the Appellate Court shall be in writing and shall state-

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(a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

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In view of the aforesaid provision, the points for determination are required to be framed before deciding the appeal by the appellate court. Thus, the appellate court had framed the points of determination. The contention of learned counsel for the appellants that the issues were framed is highly misconceived and not tenable for the reasons that no issue has been framed by the lower appellate court, therefore, the question of opportunity of evidence and complying the provisions of Order 41 Rule 25 C.P.C. does not arise, accordingly, the contention is rejected.

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So far as the issue in regard to the pendency of the demarcation proceedings before the District Magistrate is concerned, after passing of the remand order dated 04.06.2003 by the Board of Revenue annexed as Annexure No. 5 to the appeal, nothing was brought before the court's below to show that any proceedings are going on. Thus, the learned appellate court on the basis of evidence and material on record recorded a finding that the well is situated in Gata No. 78 as per the copy of Khasra for the Fasli year 1393 to 1399. Similarly in the Fasli year 1414, it has further been recorded that as per the revenue records filed by the respondent-plaintiff, the well and tree of mango are on Gata No. 78. No contrary evidence has been adduced or shown even before this Court that well and trees are situated on Gata No. 70 or the proceedings of demarcation are pending and even if pending it could have any bearing on the suit for permanent injunction, which has been decided on the basis of evidence and material on record. Thus, the contention of learned counsel for the appellants is misconceived and not tenable.

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No other point has been pressed or argued. Thus, the appeal has been filed on misconceived and baseless grounds. No substantial question of law arises in this appeal.

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The appeal is, accordingly, dismissed .

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Order Date :- 4.12.2024 Raj

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Digitally signed by :- RAJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Rajendra and Another v. Ram Sumer and Another

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Rajendra and Another v. Ram Sumer and Another

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