- (1.) This second appeal has been preferred by the defendant calling in question, the judgment and decree dated 04.10.2017 passed by the Additional District Judge (Vishista Nyayalaya) Lakhimpur Khiri in First Appeal No. 96 of 2010 (Akhilesh Kumar and others vs. Madanlal and others) by which the First Appellant Court has upheld the judgment and decree dated 30.10.2010 passed by the Additional Civil Judge, Senior Division, Lakhimpur Khiri in R.S. no. 107 of 1992 by which the suit of the respondent was decreed. At the time of admission of the second appeal, the following substantial questions of law were framed which are mentioned herein under:- "(a) Whether the suit and first appeal could have been decided by the first appellate court as well as trial court to decree the suit of plaintiff-opposite party permitting the plaintiff to set up a new case, beyond his pleadings? (b) Whether the alleged partition deed could have been read in evidence in the teeth of bar of Section 49 of Registration Act, 1908? (c) Whether the first appeal could not have been decreed by the first appellate court without framing the points of determination, decision thereon and reason for decision as required under Order 41 Rule 31 C.P.C.?"
(2.) The Court has heard Sri Zainuddin Mohammad Siddiq for the appellant and Sri K.S. Rastogi for the respondent.
(3.) The principle submission of the learned counsel for appellant is that in a suit for declaration and arrears of rent and ejectment, it was necessary for the plaintiff respondent to have established his title as well as the relationship of landlord and tenant, failing which no effective decree could have been passed. He further went on to urge that the sole basis upon which the trial court has decreed the suit and the First Appellant Court has concurred with the said finding is the document bearing paper no. Ka 63 which was a document of partition dated 07.04.1991 and since the said document was neither registered nor stamped. Therefore, it could not have been taken note of by the courts of law as it was hit by section 49 of the Registration Act. If the said document is ignored then neither the relationship of landlord and tenant nor the title of the plaintiff in respect of the property was established and therefore the courts have erred in placing reliance upon on inadmissible document, which has vitiated the findings. It has also been urged that the First Appellant Court has erred in proceeding to decide the matter without framing the points of determination and without recording its own reasons, which violates the provisions of Order 41 Rule 31 of C.P.C. Per contra the learned counsel for the respondents submitted that the second appeal is concluded by concurrent findings of fact wherein both the courts have held the plaintiff to be the owner and the landlord. Therefore, the suit has rightly been decreed and thus it requires no interference from this Court under Section 100 C.P.C. In order to appreciate the contentions of the respective parties briefly the facts leading up to this second appeal is being noted.;