JUDGMENT :

The present appeal has been preferred under Section 100 of the Code of Civil Procedure against a judgment and decree dated 30.08.2023, passed by the learned District Judge, Kamrup (M) at Guwahati, in Title Appeal No. 33 of 2019 whereby the appeal has been dismissed and the judgment and decree dated 21.09.2019 passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati, in Title Suit No. 152/2015 has been upheld.

2. The appellants were the defendants in the aforesaid Title Suit which was instituted for a declaration of right, title, interest and for mandatory injunction for demolition. As indicated above, both the Courts below had accepted the case of the plaintiffs and had decreed the suit in their favour, which also includes a direction for demolition.

3. I have heard Shri OP Bhati, learned counsel for the appellants whereas Shri RK Bhuyan learned counsel has represented the respondents on the strength of a Caveat.

4. Shri Bhati, the learned counsel for the appellants has contended that in spite of the fact that the present appeal has been preferred against concurrent findings, there are substantial questions of law which would require adjudication. He submits that the said substantial questions of law would include the question/issue of non-joinder of the Guwahati Municipal Corporation (GMC) and the Guwahati Metropolitan Development Authority (GMDA). He further contends that since the extent of unauthorised construction has not been ascertained, the learned Courts below could not have passed the impugned judgment.

5. The learned counsel for the appellants has submitted that while the demolition has been directed to be made by the GMC/GMDA, such directions could not have been made without those authorities are being made parties. He further submits that there is no exact description of that portion of the structure which has been alleged to be unauthorised and therefore no demolition could have been directed.

6. The learned counsel for the appellants has drawn the attention of this Court to the relief prayed for in the plaint, more specifically, against Sl. No. (b) in which, a decree for mandatory injunction for demolition has been prayed for. Reference has also been made to the judgment dated 21.09.2019 of the learned Civil Judge No. 2, Kamrup (M), who, in the order, had declared the structure to be illegal and unauthorised and liable to be demolished. The GMC and GMDA were, accordingly directed to demolish the unauthorised structure. Shri Bhati, the learned counsel has submitted that such direction could not have been given as there were no pleadings to that effect.

7. Reference has also been made to the judgment dated 30.08.20235 passed by the First Appellate Court, more particularly, while deciding the Issue No. 3 pertaining to whether the suit was bad for defect of parties. It is contended that the discussion in holding the issue in favour of the plaintiff is not in accordance with law.

8. Shri Bhati, the learned counsel for the appellant in support of his submission has relied upon the case of BSES Rajdhani Power Ltd. Vs. Delhi Electricity Regulatory Commission, reported in (2023) 4 SCC 788. By referring to paragraph 31 of the said judgment, it is submitted that any order passed in absence of the pleadings or if it is based on no evidence, the same may be taken up in a second appeal.

9. The learned counsel for the appellants, accordingly submits that the appeal be admitted on the aforesaid two substantial questions of law.

10. Per Contra, Shri RK Bhuyan, learned counsel for the respondents has submitted that none of the contentions advanced on behalf of the appellants are tenable in law. He submits that both the questions which have been sought to be raised in this appeal have been elaborately dealt with and answered by the learned Trial Court which has been affirmed by the learned First Appellate Court and therefore, there is no scope for interference by this Court in exercising powers as the Second Appellate Court.