ALLAHABAD HIGH COURT
Jaspreet Singh, J.
Shabbu and Anr. – Appellants
versus
Moinuddin – Respondent
Second Appeal No.539 of 2017
Decided on 9.3.2021

IMPORTANT POINT
Where possession of plaintiff-respondent is not satisfactorily proved, no gainful purpose would be served in remanding the mater for re-consideration only on account of procedural lapse committed by Lower Appellate Court.

Headnote:

Civil Procedure Code, 1908 – Order 41 Rule 31 – Powers and functions of Appellate Court – Suit for Permanent Injunction – Provisions of Order 41 Rule 31 C.P.C. are salutary in nature and are required to be followed by Courts of Appeal – Trial Court clearly held that title of property could not be established by plaintiff – Court came to conclusion that plaintiff could also not establish his possession and accordingly dismissed suit – Lower Appellate Court while affirming that title was not available with plaintiff but considering that possession was with plaintiff set aside judgment – Lower Appellate Court did not adhere to mandate of Order 41 Rule 31 C.P.C., inasmuch as, it has not considered submissions, issues before it and has also not reversed findings by Trial Court nor it has met reasons given by Trial Court at close quarters and yet it has allowed appeal without reversing findings – Plaintiff despite knowing fact that title has been set up by defendant failed to convert suit for permanent injunction into one seeking declaration – Finding recorded by Lower Appellate Court on point of possession is perverse – Where possession of plaintiff-respondent is not satisfactorily proved, no gainful purpose would be served in remanding the mater for re-consideration only on account of procedural lapse committed by Lower Appellate Court, Court not inclined to remit the matter – Judgment of Lower Appellate Court set aside and judgment and decree passed in Regular Suit affirmed.

Held: Having heard the learned counsel for the parties and on perusal of record, the factual matrix is in a limited compass. The plaintiff has claimed possession over the property in question and seeks permanent injunction that he may not be dispossessed from the property without due process of law. On the other hand, the defendant has claimed the property being its owner as well as in its possession. The Trial Court has clearly held that the title of the property could not be established by the plaintiff. Even noticing the evidence and the cross examination, the Court came to the conclusion that the plaintiff could also not establish his possession and accordingly dismissed the suit.

The Lower Appellate Court while affirming that the title was not available with the plaintiff but considering that the possession was with the plaintiff set aside the judgment.

It is true that the provisions of Order 41 Rule 31 C.P.C. are salutary in nature and are required to be followed by the Courts of Appeal.

Though, upon perusal of the judgment passed by the Lower Appellate Court, this Court is satisfied that the Lower Appellate Court did not adhere to the mandate of Order 41 Rule 31 C.P.C., inasmuch as, it has not considered the submissions, the issues before it and has also not reversed the findings by the Trial Court nor it has met the reasons given by the Trial Court at close quarters and yet it has allowed the appeal without reversing the findings.

Thus, in view of the aforesaid, where the plaintiff despite knowing the fact that the title has been set up by the defendant failed to convert the suit for permanent injunction into one seeking declaration and further without there being clear evidence regarding possession of the plaintiff also for the reason that no injunction could be granted against the true owner. For the aforesaid reasons, this Court is satisfied that the finding recorded by the Lower Appellate Court on the point of possession is perverse and is a case of clear misreading of the evidence, hence, cannot be sustained.

In the aforesaid backdrop where the possession of the plaintiff-respondent is not satisfactorily proved, this Court is of the opinion that no gainful purpose would be served in remanding the mater for re-consideration only on account of the procedural lapse committed by the Lower Appellate Court, hence, in the peculiar circumstances, this Court is not inclined to remit the matter.

In view of the aforesaid, the second appeal succeeds. The judgment of the Lower Appellate Court dated 28.10.2017 passed in Civil Appeal no. 86 of 2015 passed by the Additional District Judge, Court No. 3, Sitapur is set aside and the judgment and decree dated 27.05.2015 passed in Regular Suit No. 74 of 1999 passed by the Civil Judge, Junior Division, Biswa, Sitapur is affirmed. (Paras 17, 18, 19, 20, 27, 29 and 30)

Result: Appeal allowed.