TMI Blog2015 (1) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... rs he was paying the house tax as was found by the trial court on the basis of house tax receipts and extracts of house tax Assessment Register. It is not disputed that plot No. 357 belonging to the Defendants was in south of plot No. 358, and house of the Defendants was situated over their plot. The trial court has decreed the suit only in respect of plot No. 358. The decree passed by the trial court is restored - appeal dismissed. - Civil Appeal No. 666 of 2015 (Arising out of S.L.P. (C) No. 8008 of 2009) - - - Dated:- 27-1-2015 - Dipak Misra and Prafulla C. Pant, JJ. For Appellant: L.B. Rai and Shankar Divate, Advs. For Respondents: Suryanarayna Singh, AAG, Gaurav Jain, Abha Jain, Jaivir Singh and Pragati Neekhra, Advs. JUDGMENT Prafulla C. Pant, 1. This appeal is directed against judgment and order dated 10.12.2008 passed by High Court of judicature at Allahabad whereby Second Appeal is allowed and the decree passed by Civil Judge (Junior Division), Havali, Saharanpur, in Suit No. 77 of 1999, is restored. 2. We have heard learned Counsel for the parties and perused the papers on record. 3. Brief facts of the case are that Plaintiff/Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing issues: (1) Whether the Plaintiff is owner and in possession of the suit property? (2) Whether the Defendants are illegally interfering with the peaceful possession of the Plaintiff by cutting the trees, demolishing the structure and forcibly taking possession of the property? (3) Whether the suit is barred by the provisions of Sections 38 and 41 of Specific Relief Act? (4) Whether the suit is undervalued and court fees paid is insufficient? (5) Whether the suit is bad for mis-joinder of Defendant No. 2? (6) To what relief, if any, the Plaintiff is entitled? 6. The parties adduced their oral and documentary evidence before the trial court. On behalf of the Plaintiff, PW1-Mohd. Farooq (Plaintiff himself) and PW 2-Idrish were examined. On the other hand, on behalf of the Defendants, DW1-Zarif Ahmad (Defendant No. 1 himself), DW2-Safiq and DW3-Anita (Advocate Commissioner, who inspected the spot), were examined. It appears that Plaintiff filed, documents to show that in the Assessment Register of the Town Area, plot No. 358 is recorded in his name whereas plot No. 357 is recorded in the name of Defendant No. 1-Zarif Ahmad. He further filed receipts showi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have been executed. 10. We have considered the submission of leaned Counsel for the Defendants but we are unable to agree with it for the reason that had it been a case of mandatory injunction requiring restoration of possession of land to the Plaintiff or demolition of the construction raised by the Defendants, what the Defendants have pleaded before us, could have been accepted but the present suit is for the relief of permanent prohibitory injunction in respect of the land which is described with boundaries and its municipal number. Therefore, it cannot be said that the decree passed by the trial court is un-executable. 11. Order VII Rule 3 of the Code of Civil Procedure, 1908 (for short Code of Civil Procedure ), which pertains to the requirement of description of immovable property, reads as under: Where the subject matter of the suit is immovable property: Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property, sufficient to identify it, and in case such property can be identified by boundaries in a record of settlement or survey, the plaint shall specify such boundaries or numbers. 12. The object of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A Code of Civil Procedure is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the Defendants purely as a question of law which, in their submission, strikes at the very root of the right of the Plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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