S.K.Phujdar, J. - (1.) WHEN the matter was taken up for hearing on the point of admission the caveator desired a right of audition. The appellant objected stating that the caveator had a right of being heard only on an application, e.g. on the application for interim order and not on the point of admission. The caveator relied upon a decision of the Allahabad High Court in AIR 1987 All 360, wherein it was held that although Order XLI. Rule 11 did not grant a right of hearing at the admission stage to the caveator, but the court had every authority to hear him for the ends of Justice as justice was likely to be done if the two sides were heard. Accordingly the caveator was allowed, at this stage, only to urge that the substantial questions of law framed in the memo of appeal were not at all substantial.
(2.) THE parties were heard not only on the above question but also on the question as to what was a substantial question of law in terms of Section 100, C.P.C. and if any such substantial question of law was there for the purpose of admitting the appeal. The suit in question was filed by the plaintiff/respondent Lakshmi Narain Purwar against the appellant-defendant and others praying for injunction. The suit property was a house and four shop rooms specifically described by certain letters in the map annexure to the plaint. The plaintiff initially prayed for a direction upon the defendants that they may not disturb the possession of the plaintiff on the suit property and may not make any construction thereon. Subsequently, the plaint was amended to insert a prayer for possession in respect of a portion of the suit property again specifically described by certain different letters. There was a prayer for damages also. The defendant contested the suit and denied the claim of the plaintiff to say that the property had never belonged to Jagannath or to Smt. Ram Payari and also denied that any will was executed by Smt. Ram Payari, which was the line of claim of the plaintiff. They asserted that the suit property was in possession of the defendant. It was insisted that Jagannath had accepted in an earlier proceeding, by his action and by his papers, that the property belonged to defendant Nos. 1 and 2.
(3.) ON the basis of the pleading the trial court had framed several issues concerning the ownership of the suit property by Jagannath, the will made in respect of it by Smt. Ram Payari in favour of the plaintiff, the ownership of the plaintiff and his possession of the suit property, the ownership of the defendant and their possession thereon, valuation, limitation etc. Two advocate Commissioners were appointed during the trial of the suit. The first Commissioner was deputed at the instance of the plaintiff and he had held an ex parte inspection of the site. His report was on record. The second advocate Commissioner had gone at the instance of the defendants and his report was also on record. The learned trial court, after a discussion of the cases of the parties and the evidence on record, had dismissed the suit of the plaintiff. The aggrieved plaintiff filed first appeal and the first appellate court allowed the appeal, set aside the decree of dismissal passed by the trial court and decreed the suit of the plaintiff and allowed damages from 1.4.93 at the rate of Rs. 3,000 per month. The defendants were directed to remove their structure from the suit property within three months from the date of the decree. The first appellate court had called for certain documents from the municipality and had relied upon the same. This judgment is now in challenge in the present appeal at the instance of the defendant-appellant Sarya Naraln.;