Jharkhand High Court
Ramchandra Prasad Kushwaha & ... vs Most. Rampati Devi & Ors on 19 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 179 of 2018
Ramchandra Prasad Kushwaha & Others . ... .... Appellants
Versus
Most. Rampati Devi & Ors. .... ... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Appellants : Mr. Manjul Prasad, Sr. Advocate
Mr. Baban Prasad, Advocate
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5/ 19.10.2022 Concurrent findings of both the Courts below have been
challenged in this second appeal.
Mr. Manjul Prasad, learned senior counsel, assisted by Mr.
Baban Prasad, learned counsel appearing for the appellants submits that
though it is a case of concurrent findings of both the Courts below, but
from perusal of the judgment passed by the Appellate Court below, it
appears that the order has been passed in a very perfunctory manner.
Perversity in the judgment cannot be ruled out. The order itself is cryptic
on the ground that Order XLI Rule 31 of the Code of Civil Procedure
has not at all been considered and there is no determination. The
contentions of the appellants have not at all been considered by the
Appellate Court below. In a most mechanical manner, the order of the
Trial Court below has been affirmed. In support of his contention,
learned counsel places heavy reliance upon the judgments of the Patna
High Court in AIR 1968 Pat 302, as also of the Hon'ble Supreme Court
reported in (2022) 3 SCC 90.
This Second Appeal is admitted by framing the following
substantial questions of law:
(I) Whether both the Courts below have illegally disbelieved the
title and possession of plaintiffs/appellants on the basis of
grant of Hukumnama coupled with rent receipt and delivery
of possession?
(II) Whether while deciding Point No.1, the learned Court of
Appeal below failed to exercise its jurisdiction vested in it
under Order XLI Rule 31 of the Code of Civil Procedure by
scrutinizing the documentary evidence itself on the anvil of
Full Bench decision reported in AIR 1986 Pat 302 ?
Any other substantial question of law will be considered at the
time of hearing.
Call for lower court records.
Issue notice to the respondents for which requisites etc. under
registered process with A/D as well as under ordinary process must be
filed by the appellants within six weeks after Diwali holidays.
I.A. No. 8228 of 2022
This interlocutory application under Order XXXIX Rule 1 and
2 read with Section 151 of the Code of Civil Procedure has been filed
for restraining the respondents from making any illegal construction
over the suit land.
Learned Senior Counsel appearing for the appellants submits
that the respondents are trying to make illegal and forceful construction
over the land in question, which is evident from some photographs
enclosed with this interlocutory application itself.
Since the appeal has been admitted for hearing and
substantial questions of law have been framed, prime facie case is made
out in favour of the appellants. Balance of convenience also lies in
favour of the appellants.
In view of the aforesaid facts, the respondents are hereby
restrained from making any illegal and forceful construction over the
suit land i.e. Village-Baddiha, Thana No. 66, Khata no. 40, Plot No. 983
area 2.87 acres, till appearance of respondents in the present appeal.
This interlocutory application stands allowed.
(Dr. S. N. Pathak, J.)
R.Kr.
