9911796707
TMI Blog1997 (10) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... amended plaint was filed on June 18, (sic) 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 mis. 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 La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased as per Exhibit D-1 and that he was cultivating the same. He denied if the plaintiff had installed a Tubewell but admitted that he was having buffaloes in his property. He denied the suggestion that the land purchased by his wife and minor children was not owned by the first defendant. Bakshi Ram appeared as second witness for the defendants. He admitted that he was having disputes with the plaintiff who was his brother. He, however, said that the land covered by sale deed Exhibit D-1 was in his possession and that earlier Banwari Lal son of Behari Lal was the lessee of the first defendant. He said that he had delivered the possession of the land to the second defendant. Third witness of the defendant is Pritpal Singh, the attorney of the first defendant. He said the first defendant was the owner of the land and that the land covered by Exhibit D-1 was in possession of the first defendant through Bakshi Ram. He said that the suit land was never in possession of the plaintiff and that about 20 kanals of land had been sold out of that land and that the vendees were in possession of their respective portions and they had constructed houses thereon. That is all the evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding on the plaintiff". We do not find any justification for such a finding. 6. Exhibit DW-3/C is another document on record which is Jamabandi for the 1963-64. This document showed that the suit land was in possession of the Banwari Lal S/o Behari Lal, Amru, Darshan sons of Ishar. Both Amru and Darshan are brothers of the plaintiff. According to the Additional District Judge this document had also been tampered with in that instead of the words Banarsi Dass the words 'Banwari Lal' had been manipulated. There is against nothing on the record for the learned Judge to return such a finding. Moreover, his comments on the conduct of the second defendant were quite misplaced and reading of his judgment shows that perhaps it was the second defendant who was on trial before him. This certainly resulted in miscarriage of justice. 7. The second defendant went in second appeal before the High Court. The High Court quashed these remarks made against the second defendant and in our view rightly. The High Court also found that there was no evidence that the plaintiff was in possession of the suit land. The High Court also said that the approach of the learned Additional District Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. 10. Prior to the amendment, Section 100 of the Code was as under: 100(1). Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely: (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having, the force of law; (c) a substantial error or detect in the procedure provided by this Court or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this section from an appellate decree passed ex parte. 11. Mr. Khuller, Learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amended Section 100 of the Code. We, therefore, need not examine the question if Section 4 of the Code would save the applicability of Section 41 of the Punjab Courts Act in view of Section 101 of the Code which says that no second appeal shall lie except on the grounds mentioned in Section 100 and Entry 18, of List III (Concurrent List) of Seventh Schedule of the Constitution which reads: Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, Limitation and Arbitration? 14. The question which, thus, arise for consideration is, if the second appeal 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 D1) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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