Fauzdar (Died) Thru. Kusum Shukla and Others vs Devta (Died) Thru. 1/1. Smt. Champa Devi and 5 Others

Instant second appeal under section 100 CPC, has been filed by the defendant/appellants to set aside the judgment and order dated 08.10.2025, passed by learned fourth Additional District and Sessions Judge, Bahraich in Civil Appeal No.17 of 2021 (old Civil Appeal No.38 of 1998) In Re: Devta and Others versus Fauzdar and others, whereby the appeal preferred by the plaintiff, Devta, challenging the judgment and order dated 25.01.1988 passed by the learned Additional Munsif-II, Bahraich, in Regular Suit No.581 of 1986 In Re: Devta versus Fauzdar and another, has been allowed and the suit filed by the plaintiff/respondent no.1 for permanent injunction has been decreed.

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Learned counsel for the appellant submits that the original suit of the plaintiff was dismissed by trial court vide judgment and order dated 25.01.1988, wherein the court below has given a finding that the plaintiff is found to be owner of the property in suit but not in possession. It is the

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case of the plaintiff that he has purchased six Biswa land, out of Plot No.167, area 2 acres, and the defendant has purchased 11 Biswa from the same vendor out of Plot No.167. It is wrong to say that the vendor was not in possession of 17 Biswa land in toto, and 11 Biswa land purchased by the defendant was not in existence on the spot.

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He next submitted that no survey commission was issued by the court below to demarcate the land in dispute, on which rival claims are made by the parties. There are as many as 31 co-sharers on said Plot No. 167, and without demarcation of the land claimed by the plaintiff, a suit cannot be decreed. He also submitted that the learned first appellate court has failed to consider the oral evidence adduced by the parties before the trial court meticulously and has given passing reference of the statement of the witnesses. Learned counsel also submitted that the learned appellate court has wrongly decreed the suit of the plaintiff which is devoid of a prayer for restoration of possession and the first appellate court erred in law, in returning finding regarding the validity of the sale deed dated 04.07.1985, against the appellant no.1, Fauzdar. Though name of Lachhi Ram was recorded on the said plot and said vendor was competent to execute the sale deed executed by Lacchhi Ram in favour of appellant no.1, Fauzdar.

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Per contra, learned counsel for the respondents submitted that the judgment of the appellate court is well-reasoned and based on proper appreciation of evidence on record and all the submissions made on behalf of the parties are duly considered and addressed in appellate judgment whereas the judgment of the trial court is very sketchy. The suit is pending since 1986 and once the first appeal was dismissed vide order dated 27/03/1989 against which, the plaintiff/appellant had filed a second

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appeal before this Hon'ble Court, and the same was remitted to the court below as points of determination were not framed therein, and thereafter, the appeal of the plaintiff was allowed and the suit was decreed. He next submitted that the only question of law involved in second appeal is that the cross-objection of the defendant /appellants was not addressed by the appellate court, and for that purpose, the matter may be remanded to the appellate court to decide the cross-objections, instead of proceeding to decide the second appeal on the merits.

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The learned counsel for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court in Sreepat versus Rajendra Prasad, reported in AIR Online 2000 SC 92 , wherein it is held in paragraph-4 that since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have established the identity by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1. This having not been done, has resulted in a serious miscarriage of justice.

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The appeal is admitted on the following substantial questions of law:-

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(i). Whether the learned first appellate court has erred in law having been failed to decide cross-objections filed by defendants?

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(ii). Whether the learned appellate court has committed legal error while decreeing the suit of the plaintiff without asking the relief of possession as alleged in the present appeal memo?

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(iii). Whether the first appellate court has failed to comply with the provisions of Order 41 Rule 31 CPC, while reappraisal of evidence adduced by the parties before the trial court which its effect?

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(iv). Whether the learned appellate court has committed legal error while decreeing the suit of the plaintiff for a perpetual injunction in absence of partition from co-owner of the Plot No.167?

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(v).Whether the disputed land is not identifiable which requires identification by survey commission, as claimed by the appellant?

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Admit.

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Summon the lower court record.

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Steps be taken within a week.

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List this case on 09/01/2026.

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Parties are directed to maintain the status quo over the property in suit till the next date of listing.

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(Ram Manohar Narayan Mishra,J.)

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November 19, 2025 KR

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Fauzdar (Died) Thru. Kusum Shukla and Others v. Devta (Died) Thru. 1/1. Smt. Champa Devi and 5 Others

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Fauzdar (Died) Thru. Kusum Shukla and Others v. Devta (Died) Thru. 1/1. Smt. Champa Devi and 5 Others

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