Important Point
No doubt procedure is meant to advance justice but when law prescribes as to how jurisdiction is to be exercised and power is conferred for that purpose, it has to be exercised that way. Thus, for a second appeal to be maintainable, it has to satisfy the parametres as laid in Section 41 of the Punjab Courts Act or Section 100 of CPC, as the case may be.

Headnote:Civil Procedure Code, 1908-Section 100 (as amended by the Amendment Act, 1976)-Punjab Courts Act, 1918-Section 41(c)-Second Appeal-Maintainability-Suit for permanent injunction-Sale deed held invalid by First Appellate Court without any issue to that effect-Vendees, in whose favour sale deed executed, not made parties to suit-Finding by First Appellate Court that Jamabandi document was forged and fabricated by defendants when no such plea raised by plaintiff and there being no evidence to that effect-No evidence produced by plaintiff to show that he was in possession of suit land-No revenue record produced by plaintiffin support of his case-No witness examined from Rehabilitation Department of Central Govt. to show that suit land was an evacuee land-Fit case of substantial error or defect in procedure as prescribed by Code u/s. 41(c) of 1918 Act-Second appeal maintainable and judgment of First Appellate Court based on no evidence against record and against procedure prescribed by law-Liable to be set aside.
Held : The question which, thus, arise for consideration is, if the second appela in the High Court was maintainable in view of restrictions contained in Section 41 of the Punjab Courts Act. We find no impediment in the jurisdiction of the High Court in entertaining the second appeal in the present case in view of clause (c) of sub-section (1) of Section 41 of the Act. The first appellate Court clearly fell in error in coming to the conclusion that the sale deed (Exhibit D 1) was invalid without there being any issue to that effect and without the vendees in whose favour the sale deed was executed being parties to the suit. Again there was a clear error of jurisdiction committed by the first appellate Court when it gave a finding that ‘Jamabandi’ was forged and forged and fabricated, when no such plea was raised by the plaintiff and there was no evidence to that effect. If we see the issues and the evidence on record, the conclusion is irresistible that there is no evidence to show that the plaintiff was in possession of the land or of his claim to be in possession being the son of Relu Ram and grandson of Ishar. No revenue record was produced by the plaintiff in support of his case. No witness from the Rehabilitation Department of the Central Government was examined to show that it was an evacuee land. In the absence of the documentary evidence which could have been avilable, the plaintiff could not rest his case on oral evidence which was against the record produced by the defendants. In this view of the matter, the first appellate Court could not return a finding that it was the plaintiff who was in possession of the land or that any forgery was committed by the defendants. The whole approach of the first appellate Court was based mere on suspicion and his possible bias against the second respondent than an evidence of which there was none and when there was no issue as well to support his findings. It was certainly the case where there was a substantial error or defect in the procedure as prescribed by the Code and the High Court was justified in entertaining the second appeal. Once having held that the second appeal was maintainable, the High Court was right in setting aside the judgment of the first appellate Court as it was based on no evidence; was against the record; and was against the procedure prescribed by law. (Para 14)

Judgment

D.P. Wadhwa, J.-Plaintiff is in appeal. He is aggrieved by the judgment dated May 20, 1992 of the Punjab and Haryana High Court passed in regular second appeal whereby his suit for injunction both perpetual and mandatory was dismissed. The trial Court had also dismissed the suit though he succeeded in the first appeal.

2. Plaintiff instituted his suit on May 3, 1986. The sole defendant was Brig. Maharaja Sukhjit Singh. The plaintiff sought a decree for permanent injunction restraining him from interfering in the land measuring 32 Kls 12 mls situated in the revenue estate of Jalandhar of which the plaintiff claimed to be in culivating possession. During the pendency of the suit the plaintiff impleaded Balbir Singh Chandi as defendant No. 2 and amended plaint was filed on June 14, 1986. Now, the plaintiff said that the first defendant through his attorney Pritpal Singh allowed the second defendant to take forcible and illegal possession of land measuring 1 kanal 12 mls out of the suit land and that the second defendant started raising construction thereon. The plaintiff, therefore, also sought a relief for mandatory injunction directing the defendants (now respondents) to demolish the construction, remove the rubble and vacate the illegal and forcible possession of the land of which he was dispossessed. Claim of the plaintiff was that he was in peaceful cultivating possession of the land and that he got possession of the land through his father Relu Ram who in turn got from his father Ishar. Plaintiff said that the land belonged to the Central Government in the Rehabilitation Department and Ishar, his grand father, was a sub-lessee. The land according to him was an evacuee land. The defendants denied the allegations of the plaintiff. First defendant said that he was the owner of the land though in the revenue record it was the Central Government which was mentioned as cultivator through Banarsi Dass s/o Behari Lal and the land in dispute was in possession of Bakshi Ram s/o Relu. It was submitted that it was Banarsi Dass who was the allottee. It was further submitted that the plaintiff had also filed a suit against Maharaja Paramjit Singh through Pritpal Singh which was dismissed. It was stated that it was Bakshi Ram who was in actual cultivation possession of the land. Second defendant in his written statement said that the plaintiff was not the owner and that in the revenue record he was not shown to be in possession of the land. He pleaded that the land measuring 1 kl and 12 mls was purchased by Atam Parkash, Amandeep and Jaswinder Kaur from Maharaja Sukhjit Singh first defendant through his attorney Pritpal Singh by a sale deed (Exhibit D-1) dated February 17, 1986 which was also signed by Bakshi Ram as witness who was in actual possession of the land. Second defendant then said that mutation was duly sanctioned (Exhibit D-2) on May 5, 1986. Jaswinder Kaur is the wife of the second defendant and Atam Parkash and Amandeep are their children. Second defendant said that the possession of the land subject matter of the sale deed was delivered on the same day and thereafter certain construction was made. The second defendant said that suit against him was not true.

3. On the pleadings of the parties following issues are framed by the trial Court :

“1. Whether suit is not maintainable in the present form? OPD.

2. Whether plaintiff is in possession of suit land? OPP.

3. Whether plaintiff is entitled to injunction prayed for? OPP.

4. Whether suit is bad for non-joinder of necessary parties? OPD.

4A. Whether defendant No. 2 is entitled is compensatory cost, if so to what amount? OPP.

5. Relief.”

4. In support of his case the plaintiff examined himself and two other witnesses, namely, Om Parkash (PW 2) and Jagjit Singh (PW 3) and rested his case. No documentary evidence was produced in support of his pleas in the plain

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