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Regular Second Appeal No.. 573 of 1964, decided on 21st November, 1979.
-- O. XLI, r. 31-Finding of trial Court partly in favour of appellant and partly in favour of respondents-Several questions remaining undetermined by lower Appellate Court-Judgment, held, not in conformity with provisions of O. XLI, r. 3l--Case remanded to Appellate Court for rehearing.
Bandaru Venkayya anal another v. Lakshmi Narasayya and another A I R Andh. Pra. 975 ; Faqir Chand and others v. Sooraj Singh A T R 1949 All. 467 ; Imam Din and others v. Man Singh and others A I R 1929 Lah. 92 ; Nahadivip Chandra Bhuiya v. Abul Khair Muhammad Mostafa Mia P L D 1959 Dacca 741 ; Mehr Bano v. Lal Kban etc. P L D 1966 Pesh. 126 and Intej Ali and others v. Yadulla and others P L D 1961 Dacca 79 ref.
Sh. Abdur Rashid for Appellant.
Gulzar Hassain for Respondents.
Date of hearing : 6th November, 1979.
This appeal has been filed against the judgment of the learned Addi tional District Judge, Jhelum dated the 26th May, 1964 affirming that of the Civil Judge; Jhelum dated the 22nd July, 1973 by which he had dis missed the suit for lack of permission under section 92 of the Civil Pro cedure Code.
2. Briefly the facts of the case ,are that the appellants who are real brothers had filed a suit against the respondents for possession of land measuring 71 marlas situated in village Jabbairpur, Tehsil Chakwal, District Jhelum. The case of the appellant was that the respondents had encroached upon the land which was Shamlat Deh, and therefore, the appellants were entitled to have the possession of the disputed land from the respondents. In order to properly describe the land which was claim ed by the petitioner it may be pointed out that the petitioners divided the disputed land into three parts. Part-A consisted of portion of Khasra No. 2254 which was said to be Shamlat Deh and was in possession of the appellants for the last 28 years. Part-B which was also described Shamlat Deh was also said to be in their possession from time immemorial. Part consisted of a part of Khasra No. 2271 which. was stated to be a public way. The respondents were stated to be non-proprietors in the village and had no concern with Shamlat Deh and Abadi Deh and. that the cause of action accrued in favour of the petitioners two months prior to the filing of the suit when the land in dispute was encroached. The suit was contested by the respondents and as many as 10 issues were framed by the learned trial Court apart from relief. As ultimately the point for determination would be whether the lower appellate Court had given findings on all the material questions, it would be advisable to reproduce the issues :-
(1) Whether the plaintiffs have any locus standi to bring the present suit O. P. P.
(2) Whether Khasra Nos. 2254 and 2253 form part of Shamlat Deh O. P. P.
(3) Whether Khasr2271 described in the plaint by 'C' is a public way O. P.
(4) Whether the plaintiffs are in possession of the khasra Nos. 2253, 2254 as owners of Shamlat Deh, if issue No. 2 is in the affirma tive O. P. P.
(5) if Issue No. 3 is in the affirmative, whether the plaintiffs are entitled to institute a suit for Khasra No. 2271 O. P. P.
(6) Whether the defendents have encroached upon the suit land (A), (B) and (C) O. P. P.
(7) Whether the defendants are the owners of the suit land O. P. D.
(8) Whether the defendants are in adverse possession of the suit land for more than 12 years, if so what is its effect O. P. D.
(9) What is the value of the suit land for the purposes of court-fee and jurisdiction O. P. P.
(10) Whether the suit is maintainable in the present form O. P. P.
(11) Relief.
3. The learned trial Court under Issue No. 1 held that Khasra No, 2271 was a public way according to their own showing in the plaint, and therefore, it was necessary for the appellants to have filed the present suit wish the permission of the Advocate-General under section 92 of the Civil. Procedure Code and therefore, the locus standi of the appellant to file a suit in respect of Khasra No. 2271 was held to be non-existent.' In res pect of other Khasra numb-,r the respondent conceded that the appellant bad the locus stand to file the present suit. Issue No. 2 was partly decided in favour of the appellant and the respondent by holding that Khasra No. 2253 was not a part of Shamlat Deh while Khasra No. 2254 was held to be Shamlat Deh and that the appellants were in possession as co sharers. As regards issue No. 3 it was contended by the defendants that Khasra No. 2271 was a public way. Issue No. 4 was also partly decided inasmuch as it was held that the appellants are in possession of Khasra No. 2253 as tenants at will under one Khan and others while Khasra No. 2254 was in their possession as co-sharers in the Shamlat Deb. It was, therefore, on the basis of the above finding it was held that the petitioners could not file a suit in respect or Khasra No. 2271 without the permission of Advocate-General as already stated above. After discussing the entire evidence on record including report of the Local Commissioner (Exh. C/2) and his statement dated 24th April, 1963, the learned trial Court came to the conclusion that the petitioners have only been in a position to prove that the defendants had encroached upon one marla and 6 karams out of Khasra No. 2254 and as such Issue No. 6 was again decided partly in favour of the appellant and partly in favour of the respondents. It was held by the learned trial Court under Issue No. 7 that the respondents were not the owners of the suit land. Under Issue No. 8 it. was held that the defendants were in possession of Khasra No. 2254 as owners for more than 12 years. Issue No. 9 relating to the court-fee was decided by com promise. Under Issue No. 10 the finding of the learned trial Court was that in view of his decision on Issues Nos. i, 3 and 5 the suit was not maintainable so far as Khasra No. 2271 was concerned but in respect of other land it was held to be maintainable. The cumulative effect of the finding of the learned trial Court was that the suit was dismissed vide his judgment and decree dated the 26th May, 1964.
4. The appellants filed an appeal against the aforesaid judgment and decree. As per details of the findings given by the learned trial Court would show that the appeal filed by the appellant raised important ques tions of law and facts. The learned Additional District Judge, however, dismissed the appeal vide his judgment dated the 26th May, 1964. The learned lower appellate Court noted some conlentions of the appellant, did not discuss the evidence on record. No finding was given on the various contentions raised and came to the following conclusion
"The out-come of the above discussion is that the respondents have encroached upon Khasra No. 2254 to the extent of one marla and 6 karams, The 'respondents' plea with regard to Khasra No. 2254 is that they purchased the land in Khasra No. 2254 from one Ghulam Nabi vide sale deed Exh. D 1. From the evidence on the file it is clear that the land in possession of the respondents in Khasra No. 2254 is the same which was pur chased by them from one Ghulam Nabi in the year 1947. This would also show that respondents are in possession of the land in Khasra No. 2254 as owners. This means that no land in Khasra No. 2254 has been encroached upon by the respon dents."
5. The learned counsel for the appellant has argued that the mate rial questions involved in the present case were not adverted to by the learned Additional District Judge and the question of the suit being com petent in respect of Khasra No. 2254 which was stated to be a village path was not at all examined. The learned counsel for the appellant has cited the following authorities in support of the proposition that sec tion 91 was no bar to filing a suit in respect of a village path
(1) Bandaru Venkayya and another v. Lakshmi Narasayya and another
A I R Andh. Pra. 975.
(2) Fagir Chand and others v. Sooraj Singh A I R 1949 All. 467 and
(3) Imam Din and others v. Man Singh and others A I R 1929 Lah. 92.
Other important questions were also neither examined nor any finding given by the learned lower appellate Court and the evid ence on record was also not discussed by the learned lower appellate Court in relation to the material issues. It is therefore argued that the judgment delivered was not in compliance with Order XLI, rule 31, C. P. C. and that it was a fit case for remand. Reliance for this proposi tion was placed on Nabadwip Chandra Bhuiya v. Abul Khair Muhammad Mostafa Mia (P L D 1959 Dacca 741).
6. The learned counsel for the respondents though conceded that important questions of fact and law had not been resolved but maintained that the conclusion arrived at by the learned appellate Court could be supported by evidence on record. Reliance in this connection was placed on Mehr Bano v. Lal Khan etc. (P L D 1966 Pesh. 126). It was further argued that a judgment of an appellate Court affirming that of the trial Court need not discuss each and every detail. Reliance was also placed on Inter Ali and others v. Yadulla and others (P L D 1961 Dacca 79). 1 am of the considered view that it is a fit case for remand as the findings of the learned trial Court were partly in favour of the appellant and partly in favour of the respondents. Some of the land was found to be Shamlat Deh while a part of Khasra No. 2254 was village path, which according to the appellant, did not come under the purview of section 91 of the Civil Procedure Code. This question apart' from several others remained undetermined by the learned lower appellate Court. I, therefore, agree with the learned counsel for the appellant that the judgment was not in conformity with the provisions of Order X L1, rule 31, C. P C. and this is a fit case for remand.
7. This appeal is accepted the case is remanded to the learned Addi tional District judge, Jhelum to re-hear the appeal in the light of the above discussion. In the circumstances of the case there will be no order as to costs.
M. Y. M. Appeal accepted.
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