Bombay High Court
Ghaffarkhan Miyakhan vs Mohd.Sujat ... on 8 March, 2016
Bench: A.B. Chaudhari
sa.423.02
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 423/2002
Gaffarkhan s/o Miyakhan
Aged about 58 years
Cultivator and resident of
Wathode, Tq.Arvi Dist. Wardha. ... APPELLANT
v e r s u s
Mohd. Sujat a/o Mohd. Wajib
(Since deceased) By LRs :
a) Sheikh Yusuf s/o Mohd. Sujat
Aged 60 years, occu: Cattle Grazer
R/o Morshi, Dist. Amravati.
2) Shaikh Raheman s/o Mohd. Wajib
(since deceased) By Lrs :
a) Jaherabi wd/o Sk.Raheman
Aged 78 years
b) Sk. Rahim Sk. Raheman
Aged 50 years occu;Tailor
c) Sk. Salam Sk. Raheman
Aged 46 years, Merchant
d) Sk.Kalam Sk.Raheman
Aged 44 years
e) Sk.Kalam Sk. Raheman
Aged 42 years
f) Akhtarbi w/o Mohd. Tyusuf
Aged 52 C/o Haamatali Exh.63
Mominpura, Shaifi Nagar, Nagpur.
sa.423.02
g) Khurshabi w/o Abdul Rafig,
Aged 44 years, R/o chagrasipura
Amravati.
h) Bilkisbai w/o abdul Bnabi
(since deceased) R/o Walgaon
Dist :Amravati.
i) Nafijabi s/o Sk.Raheman
Aged 32 years
Nos. 2 (a) to 2 (e) and 2 (g) all R/o Morshi
Mokaspur a) Morshi Dist.Amravati.
3) Ammenabi wd/o Mohd. Akbar
Aged 70 years, occu: household
work, R/o Wadhona (C/o Shabaskan
s/o Sarawarkhe )
Tq.Arvi Dist. Wardha. .... RESPONDENTS
...........................................................................................................................
Mr. S.V. Purohit, Advocate for the appellants
Ms. R.D.Raskar, Advocate for LRs of respondent no.2
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 8th March, 2016
ORAL JUDGMENT:
1. Following were the questions of law framed by this Court
while admitting the Second Appeal on 30.08.2007:-
"(A) Whether the Courts were justified in declaring that the
defendant had perfected his title to the suit property by adverse
possession in the absence of pleadings and evidence, in regard to
the plea of adverse possession as required by law ?
(B) Whether the suit filed by the plaintiff was barred by the
provisions of the Limitation Act?
sa.423.02
2. After hearing learned counsel for the rival parties, however, I
find that the only question that arises for consideration, is as under :-
" Whether in the wake of Order 41 Rule 31 CPC the
lower Appellate Court committed an error in not framing the
points for determination for hearing of the Appeal? .. Yes.
What order? .. .. R.C.A. is remanded".
3.
Upon hearing the learned counsel for the rival parties, I have
perused the points for determination framed by the lower Appellate Court
which I quote hereunder :
"Whether the judgment and decree passed by the learned
trial judge deserves any interference. ..No"
There is no other point framed.
4. Mrs. R.D. Raskar, learned counsel for the legal representatives of
Respondent no.2 made a serious attempt to support the judgment of the
lower Appellate Court on the ground that even if the points for determination
were not separately framed, if the answer given by the lower Appellate Court
are seen, it is crystal clear that the lower Appellate Court has considered each
and every aspect of the subject-matter in all necessary details. She, therefore,
submitted that there is no reason to send back the matter to the lower
sa.423.02
Appellate Court.
5. Per contra, Mr. S.V. Purohit, learned counsel for the appellant
submits that there are various issues involved and the sole point for
determination framed by the lower Appellate Court does not answer the test
provided by O.41 R.31, CPC, and it is well settled law by now, according to
Mr. Purohit, that such a course of action is legally untenable/ impermissible.
Mr. Purohit, then, contended that the shares of the parties were required to be
adjudicated for which separate points for determination were required to be
framed. He therefore, submits that the matter deserves to be remanded to the
lower Appellate Court.
6. Heard learned counsel for the rival parties, at length. I have
carefully considered the submissions advanced by Ms. R.D. Raskar, learned
Advocate to find out whether the remand order should be made or not. I
find from the reading of the judgment of the lower Appellate Court itself that
without framing the points for determination in relation to all aspects
discussed from Paragraph 13 to 23, there were various facets appearing in the
Appeal for which separate points for determination were required to be
framed. The provisions of O.41 R.31, CPC, is not to be treated as a formality
for deciding the statutory Appeals. The First Appeal is a matter of right
provided by CPC and cannot be decided in a superflous manner, as was done
sa.423.02
by the lower Appellate Court. The apprehension of the parties about the delay
in the decision can be taken care of. In the result, I make the following order:-
ORDER
1) Second Appeal No. 423/2002 is partly allowed.
2) The impugned judgment and decree dated 3rd April,2002 in Regular
Civil Appeal No. 210/1996 made by the learned District Judge, Amravati is
set aside.
3)
The proceedings of Regular Civil Appeal No.210/1996 are remitted to
the lower Appellate Court for fresh hearing and decision according to law and
in the light of the provisions of O.41 R.31 of the CPC.
4) If necessary, the lower Appellate Court may invite draft points for
determination from the counsel for the respective parties and then settle the
same himself.
5) The Appeal shall be decided as expeditiously as possible and, in any
case, within a period of six months from the date of appearance.
6) th
The parties shall appear before the lower Appellate Court on 18
April,2016.
7) R & P be sent back to the lower Appellate Court, forthwith.
JUDGE
sahare
