Baburam and Another vs Bandha Lal

Heard learned counsel for the appellants and Sri Rejendra Kumar, learned counsel for the respondent nos. 2 and 3 on the admission of the instant second appeal.

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None appeared on behalf of respondent no.1.

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Learned counsel for the appellants submits that the plaintiff-Bandha Lal, respondent no.1 herein, had filed Original Suit No. 204 of 2014 Bandha Lal versus Baburam and others in the Court of Civil Judge ( Junior Division) , Lakhimpur Kheri seeking permanent injunction against the defendants, namely, Babu, Radhey Shyam, Jagdish and Om Prakash with the averments that in the east side of disputed land, there exists sehan land of the plaintiffs. In the land in dispute, the plaintiffs ties his animals, keeps farming tools, established clay chalks, manure pits etc. The defendants are trying to demolish the Manure pit, Chalk etc of the plaintiff with a view to

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dispossess the plaintiffs but due to objection of plaintiffs and interference of some respectable persons of the village, they could not succeed.

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The dispute is pertains to the house of the plaintiffs . The defendants are trying to create a pathway (Rasta) in the part of the disputed land. The disputed land is being used by the plaintiffs and his ancestral for a long period as their Sahan land and it is a ancestral property of the plaintiffs. The defendants appeared and filed their written statement, the issues were framed on 04.04.2016. Subsequently , the defendants failed to appear and suit proceeded ex parte against them. The plaintiffs had filed affidavit of evidence himself and witnesses P.W.-2 and P.W.-3 as ex parte evidence. Learned Civil Judge (Junior Division) decreed the suit of the plaintiffs ex parte after hearing arguments advanced on behalf of the plaintiffs. He submits that feeling agreived by the ex parte judgment, the defendants preferred first appeal before the Court of District Judge, Lakhimpur Kheri. in which the points of determination were framed ; (i) Whether the plaintiffs are in possession of disputed land being his Sahan Land and (ii) whether the appellants are entitled to obtain any relief .

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Learned appellate court decided both the points of determination in favour of plaintiffs-respondents and dismissed the civil appeal. The defendants have filed present second appeal feeling aggrieved by the judgment

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and decree passed by the learned courts below and has prayed for setting aside judgments and decrees passed by both the courts below.

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Learned counsel for the appellants next submitted that as a mater of fact, the defendants had filed Original Suit No. 107 of 2014 in which no written statement was filed by the plaintiffs in Suit no.204 of 2014. The trial court should have consolidated both the suits in order to arrive at a just conclusion but instead of consolidating the suits, decided suit no. 204 of 2014 ex parte against law. Learned trial court had framed six issues on 04.04.2016, out of which two issues were of fact and three issues of law, but instead of giving finding on all the issues , the trial court has decided the suit ex parte, without addressing the issues of law altogether, therefore, a legal error has crept in the judgments of both the courts below.

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Learned counsel for the respondent nos. 2 and 3 did not raise any objection on admission of the instant second appeal . This is noticeable that respondent nos. 2 and 3 were co- defendants before the Court of Civil Judge in original Suit no. 204 of 2014.

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On the basis of pleadings and submissions advanced by learned counsel for the appellants the following questions of law are being framed:-

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(1) Whether learned court at first instance was in error while deciding the original suit no.204 of 2014 filed by

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respondent no.1 without consolidating the same with Suit No. 107 of 2014 filed by the present appellants.

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(2) Whether the judgments of both the courts below are vitiated in law on account of the fact that the finding on all issues held by learned court of first instance has not been given and the first appeal was decided on the basis of issues on facts only.

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Admit.

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Summon the lower Court Record.

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List on 17.11.2025 for hearing .

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Till the next date of listing, the parties are directed to maintain status quo on the land in dispute, as exists today.

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(Ram Manohar Narayan Mishra,J.)

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October 9, 2025 dk/