Mahendra Dayal, J. - (1.) HEARD the learned counsel for the parties on the point of the admission of second appeal.
(2.) SRI M.A.Siddiqui, learned counsel for the appellant has submitted that earlier this second appeal was heard on admission and by the order dated 15.12.2006, it was held that no legal point was involved in the second appeal. However, on the request of the counsel for the appellant that there are some other legal points also as mentioned in the memo of appeal, the Court gave liberty to argue the appeal on other points also. After the aforesaid order, the appellant with the permission of this Hon'ble Court amended the memo of appeal and added by way of amendment certain grounds and substantial questions of law.
(3.) LEARNED counsel for the appellant submits that the respondent filed the suit for prohibitory and mandatory injunction which was partly decreed. Feeling aggrieved by the judgment and decree passed by the trial court, both the parties preferred appeals and the learned first appellate court took up both the appeals together and decided the same vide judgment and decree dated 23.09.2005. The learned first appellate court dismissed both the appeals. When the second appeal was earlier heard on admission, the learned counsel for the appellant mainly stressed on the point that the relief sought by the plaintiff -respondent in the regular suit, was barred by limitation as admittedly the disputed construction was raised in the year 1989 and the suit was filed in the year 1992. The relief of mandatory injunction was not prayed by the plaintiff -respondent when the suit was filed, but the same was subsequently added by way of amendment. Thus, the relief of mandatory injunction was beyond time. This Hon'ble Court while hearing the second appeal on admission concluded that no question of law regarding limitation was involved in the case. Thereafter when the counsel for the appellant pointed out that apart from limitation, there are some other points also, the Court fixed another date for hearing on other points. The learned counsel has submitted that the plaintiff -respondent had claimed ownership of the land in question on the basis of sale -deed and the defendant -appellant had specifically challenged the title of the vendor from whom the plaintiff -respondent had purchased the land, but both the courts below failed to enquie into the question as to whether the vendor of the plaintiff -respondent was competent to transfer the title of the land in dispute in favour of the plaintiff -respondent. Apart from this, the courts below wrongly relied upon the deed of relinquishment purported to have been executed in favour of the plaintiff -respondent's vendor Rahmat Ilahi. The property in dispute is a part of plot No.356 while the vendor of the plaintiff -respondent was the owner of only a part of that plot and without there being any partition by metes and bounds, he transferred a specific share in favour of the plaintiff -respondent which is measuring 2 biswas and 7 dhur only. The plaintiff -respondent also raised construction over that part of the land in the year 1989. Moreover, the property in question was not identifiable as it is the part of larger area of Khasra plot No.356. This important aspect of the matter has also not been looked into by both the courts below. These are the legal substantial questions of law which require adjudication by this Court while hearing the second appeal.;