Haresh Kumar vs Rajaram

Ritu Raj Awasthi, J.—Heard learned counsel for appellant.

The instant second appeal has been filed under Section 100 CPC against the judgment and decree dated 17.08.2016 passed by the Additional District Judge, Sitapur in Appeal No. 174 of 2009 (Haresh v. Rajaram) as well as the judgment and decree dated 21.11.2009 passed by the Civil Judge (Junior Division), Biswan, Sitapur in Civil Suit No. 192 of 2001 (Haresh v. Rajaram).

As per given facts, the appellant being the plaintiff has filed a suit for permanent injunction for restraining the respondent from interfering in the peaceful possession of appellant over mini rice mill (Palesar) and certain construction raised over the land in question and restrain him from causing any damage to the said property. The learned Trial Court while deciding the suit had framed certain issues and considering the evidence on record had dismissed the suit. The appellant thereafter preferred first appeal which too has been dismissed by the first appellate Court. The appellant thereafter has filed the instant second appeal before this Court.

Learned counsel for the appellant submits that as per the plaint the appellant-plaintiff had made a prayer for restraining the respondent from interfering in the mini rice mill and the construction raised over the land in question and restrain the respondent from causing any damage to the said property by making unauthorized possession, however, the learned Trial Court has committed manifest error by framing issue no. 1 i.e., whether the appellant-plaintiff was owner and possessor of the property in question. No issue was framed in consonance with the prayer made and, as such, the Trial Court has not decided the controversy involved in the suit and has wrongly dismissed the suit. The first appellate Court has also not considered this aspect of the matter and has proceeded to decide the appeal merely on the presumption that the issues framed by the Trial Court were just and proper and have been decided in accordance with law.

It is submitted by learned counsel for appellant that in the written statement the respondent had admitted the possession of appellant-plaintiff over the property in dispute and, as such, the suit filed by the appellant could not have been dismissed.

I have considered the submissions made by learned counsel for appellant and gone through the records.

The learned Trial Court while deciding the suit had framed certain issues, the translation of which is reproduced below:

"(1) Whether the plaintiff is owner and possessor of the land shown in the naksa nazri at E, G, H and D?

(2) Whether the suit is less-valued and the prescribed court fee is insufficient?

(3) Whether the plaintiff is entitle to get relief, if any?"

While deciding issue no. 1, learned Trial Court, on the basis of evidence on record and considering the arguments of the parties'' counsel, has come to conclusion that the appellant-plaintiff had failed to prove his possession over the land in question. He has also failed to show any right to have possession over the land in question. The issue no. 1 was, as such, decided in negative.

Learned counsel for appellant has not been able to show before this Court that the appellant had moved any application to get proper issues framed by the Trial Court or amend or add any issue in the issues framed by the Court.

It is not the case of the appellant that he had challenged the order of framing of issues by the Trial Court in any proceedings.

It appears that the issues were framed by the Trial Court in the presence of parties'' counsel and after considering the averments made in the plaint and the written statement filed by the defendant-respondent.

Learned counsel for appellant has also not been able to show that the appellant had raised any such issue before the first appellate Court.

In view of above, I am of the considered view that the contention raised by the appellant is totally misconceived and does not require any consideration at this stage. There are concurrent findings of the two Courts below which are just and proper and does not require any interference. The appeal does not involve any substantial question of law.

The second appeal being devoid of merit is dismissed at the admission stage.