HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Hashim Khan and Another
Salim and Others
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(1.) Appellants instituted Suit No. 208 of 1987 for permanent injunction against the defendants/respondents for restraining them from interfering in the title and peaceful possession of the plaintiffs over the disputed property described at the foot of the plaint. The defendants/respondents filed a joint written statement, which was subsequently got amended. On the pleadings of the parties, the learned Munsif Magistrate/Civil Judge (Junior Division), Haridwar framed the following issues:
(1) Whether the plaintiffs are owners and are in possession of the land in dispute?
(2) Whether the disputed property khasra No. 34 is a part of khasra No. 596 of which Majid and Zahooran were the owners in possession?
(3) Whether the suit is barred by Section 34 of the Specific Relief Act?
(4) Relief to which the plaintiff is entitled?
Both the parties to the suit led documentary and oral evidence in support of their respective cases. The trial Court decided issue Nos. 1 & 4 against the plaintiffs, whereas the issue No. 3 was decided in favour of the plaintiffs. The trial Court did not decide the issue No. 2 and observed that after disposal of issue No. 1, there was no necessity to decide the issue No. 2 and the trial Court cancelled the issue No. 2. The suit of the plaintiffs/appellants was dismissed with cost vide judgment and order dated 27.08.1992. Aggrieved by the judgment and decree dated 27.08.1992 passed by the trial Court, the plaintiffs/appellants filed Civil Appeal No. 28 of 1992 before the District Judge, Haridwar and the same was dismissed with cost vide judgment and order dated 20.11.1993. Against the judgments passed by the trial Court as well as by the lower Appellate Court, present Second Appeal has been preferred by the plaintiffs/appellants.
(2.) At the time of admission, two substantial questions of law were framed by this Court. Subsequently, during the course of arguments of the Second Appeal, third substantial question of law was also framed. Same are being reproduced hereunder.
(i) Whether the Courts below have grossly erred in law in completely ignoring the statement of DW-1 which clinchingly established that plot No. 34 was a abadi plot and Abdul Majid Khan and Majid Khan were one and the same person?
(ii) Whether the Courts below have grossly erred in law in ignoring the fact that even the plaintiffs called Majid Khan as Abdul Majid Khan in their replica and DW-1 and other witnesses also referred Abdul Majid Khan as Majid Khan as he was commonly known in the village?
(iii) Whether the lower Appellate Court erred in law by dismissing the appeal without framing points for determination and without giving decision thereon?
(3.) The learned counsel for the appellants first addressed the Court on the substantial question of law No. 3 and submitted that the same is a crucial substantial question of law. The Court also thinks it proper to decide the substantial question of law No. 3 first.;
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