Kailash vs Babulal and Others

Sheel Nagu, J.—Learned counsel for the rival parties are heard on the question of admission. This appeal is admitted for hearing on the following substantial question of law:--

Whether the first appellate court was right in rejecting the appeal of the plaintiff by rendering the findings in respect of plaintiff being not entitled to declaration of ownership on the suit property on the strength of adverse possession, when no such plea of adverse possession was raised before the trial court nor any declaration for ownership was sought and the suit was merely for permanent injunction.

Since the contesting parties are represented, this Court deemed it appropriate to decide this matter finally at this stage with the consent of rival parties as the controversy involved lies within a narrow campus. The record of trial court and the first appellate court are perused.

Suit was brought by the plaintiff solely seeking permanent injunction for restraining the defendants from dispossessing the plaintiff from the suit property.

Issues which were framed by the trial court also related to the above said relief. The trial court dismissed the suit by holding that plaintiff has failed to prove his possession over the suit property and also failed to prove that the defendants were attempting to dispossess him.

While deciding the first appeal preferred against the judgment and decree of the trial court, the first appellate court in para 7 of its judgment and decree proceeded to decide the case on the assumption that the suit was for declaration of ownership of plaintiff/appellant based upon adverse possession.

From reading of the judgment and decree of the first appellate court, it is evident that the first appellate court has misdirected itself by rejecting the appeal of the plaintiff on the ground not germane to the issue involved in the case.

Accordingly, this Court deems it appropriate to answer the above said substantial law in favour of the plaintiff/appellant herein. Consequently, this second appeal is allowed. The judgment and decree of the first appellate court dated 26.04.2012 passed in Civil Appeal No. 8-A/2011 is set aside with direction to the first appellate court to decide the appeal afresh on merits as expeditiously as possible.