- (1.) The present regular second appeal has been filed against judgment and decree dated 2.1.1987 passed by learned Additional District Judge, Hissar, allowing appeal filed by respondent-plaintiff against judgment and decree dated 29.1.1986 passed by learned Additional Senior Sub Judge, Fatehabad, dismissing suit filed by respondent-plaintiff.
(2.) I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below.
(3.) Briefly stated, respondent-plaintiff filed a suit against present appellants-defendants seeking a decree for possession of land measuring 40 kanals duly described in the plaint. Plea was taken that the land in dispute was allotted to plaintiff by Collector, Hisar, under the East Punjab Utilisation of Lands Act, 1949 (hereinafter to be referred as the 'Act') being waste land for a period of 20 years from the year 1971 to the year 1991 subject to payment of Rs. 2.50p per acre as rent per annum. He also installed a tubewell in the land in dispute and reclaimed it. However, as crop of kharif for the year 1980 got damaged, he left the said land and went in search of some job for his livelihood and however, when he returned in March 1982, he found that defendants had taken the possession of the said land and started cultivating the same without any right. However, they had taken the plea that they had purchased the same from its owner. Hence, this suit for possession on the ground that plaintiff is allottee of the land in dispute, whereas defendants are having no right to remain in possession. 4-5. Appellants-defendants contested the suit by taking the plea that the land was purchased by them from its owner and that plaintiff also entered into an agreement dated 11.7.1978 with them and under that agreement plaintiff relinquished his right of possession of the suit land, after receiving compensation of Rs. 8700/- and that the plaintiff also submitted an affidavit to the defendants to this effect and got a report regarding relinquishment of possessory rights entered in the revenue records. 6. From the pleadings of the parties, following issues were framed by learned trial Court : "1. Whether the plaintiff relinquished possession of the suit land alongwith tubewell of his own accord in favour of the defendants as alleged in para No. 3 of the written statement. If so, to what effect? OPD 1-A Whether the plaintiff is estopped from bringing the present suit by his own act and conduct? OPD " 1-B Whether the suit is time barred? OPD 2. Relief." 7. Evidence was adduced by both the parties in respect of their respective contentions. However, learned trial Court dismissed the suit filed by respondent-plaintiff by holding that respondent-plaintiff had relinquished possession of the suit land alongwith tubewell of his own accord in favour of the defendants. 8. Aggrieved against the said judgment and decree, present respondent- plaintiff filed appeal before learned Additional District Judge, Hissar, which was accepted and the judgment and decree passed by learned trial Court was reversed by holding that as the document vide which possessory rights were allegedly relinquished by respondent-plaintiff is unregistered one, the same cannot be looked into. Hence, the suit filed by respondent-plaintiff was decreed. 9. Aggrieved against the said judgment and decree passed by learned first Appellate Court, appellants-defendants filed this Regular Second Appeal before this Court, which was admitted vide order dated 22.1.1987 without framing substantial questions of law. 10. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, 1978 AIR(P&H) 137, had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, "the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs, 2001 2 RCR(Civ) 277 has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure, on a substantial question of law. 11. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others, 2010 3 RCR(Civ) 594, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. 12. Hence, in view of this legal proposition, learned counsel for the appellants-defendants was asked to file substantial questions of law, stated to be arising in this appeal. 13. Learned counsel for the appellants-defendants has filed the following substantial questions of law, stated to be arising in this appeal :- "1. Whether the findings recorded by the lower appellate Court are perverse being against law and evidence on record? " 2. Whether the findings of reversal recorded by the lower appellate Court are vitiated by the wrong and erroneous application of law and legal principles? 3. Whether a transfer of possession of land for a consideration on basis of an unregistered document can be read for the collateral purpose of determining the nature of possession?;