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2015 (1) TMI 1408
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....i, 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/Respondent instituted suit (OS No. 77 of 1999) seeking permanent injunction against his brother Defendant/Appellant No. 1 - Zarif Ahmad and nephew Zamir Ahmad (Defendant/Appellant No. 2) to restrain them from interfering in possession of the premises in his occupation. It is pleaded by the Plaintiff that the land shown at the foot of the plaint (Annexure P-1) with letters Ka, Kha, Ga, Gha, Cha, Chha, which bears Nagar Panchayat plot No. 358 is owned and possessed by him, and the adjoining land shown by letters Gha, Cha, Chha, and Jha bearing Nagar Panchayat plo....
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....ers of Town Area Committee, Behat, and got the disputed property numbered as 358. It is further pleaded that the suit is bad for mis-joinder of Defendant No. 2. With the above pleadings, the relief claimed by the Plaintiff was opposed by the Defendants. 5. The trial court, on the basis of the pleadings of the parties, framed the following 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)....
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....2004 before the District Judge, which was allowed vide judgment and order dated 2.3.2007 (copy-Annexure P-5) by Additional District Judge, Saharanpur. The Plaintiff challenged the judgment of the first Appellate Court before the High Court in Second Appeal. The High Court, after hearing the parties, set-aside the order of the first Appellate Court, and restored the decree passed by the trial court. Hence, by way of special leave, the Defendants have filed the present appeal. 8. Learned Counsel for the Defendants argued before us that the property in suit was not identifiable, and the first Appellate Court committed no error of law in dismissing the suit. However, on perusal of plaint (copy-Annexure P-1), we find that at the end of the plai....
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....herefore, 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 the above provision is that the description of the property must be sufficient to identify it. The prope....
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....ode of Civil Procedure provides that where evidence on record is sufficient, appellate court may determine the case finally. It is not a healthy practice to remand a case to trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case. 14. In P. Purushottam Reddy and Anr. v. Pratap Steels Ltd. (2002) 2 SCC 686, this Court has observed in paragraph 11 as under: 11. In the case at hand, the trial court did not dispose of the....
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.... the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not -- in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of f....