- (1.) THE defendant appellant has filed this second appeal under Section 100 of the Code of Civil Procedure (for short, `the C. P. C. ') against the judgment and decree dated 18. 4. 1984 passed by the Additional District Judge No. 1 Bharatpur, whereby he dismissed the appeal of the defendant- appellant and affirmed the judgment and decree dated 11. 1. 1983 passed by the Munsiff & Judicial Magistrate, Weir, District Bharatpur, in Civil Suit No. 56/1976, whereby the suit of the plaintiff-respondent for declaration and permanent injunction was decreed.
(2.) THIS Court, while admitting the second appeal on 7th of August, 1984, formulated the following questions of law:- " 1. Because the learned Court below made a mistake of law and gave perverse finding that since defendant could not prove that Bhoti had any other house in Helna, except the house in question, therefore, it is fully proved that the Gharghuda in the alleged will was in respect of the house in question. 2. Whether in a suit for declaration and permanent injunction relief of the possession could be given without averment in the plaint?" Brief facts giving rise to this second appeal are that the plaintiff-respondent Raghuveer filed a suit for declaration and permanent injunction in the lower Court against defendant- appellant Gopal, wherein it was pleaded that Mst. Bhoti was aunt of the plaintiff. She executed a registered will dated 30. 5. 1975 in respect of her movable and immovable property in favour of the plaintiff. The description of the disputed property, i. e. piece of land, was given in para 4 of the plaint. It was further pleaded that the defendant has no right whatsoever in the property, in dispute. On 29. 1. 1976 the defendant started digging the foundation to raise construction of a house over the disputed piece of land, therefore, it became necessary for the plaintiff to file the present suit to declare that the disputed property belongs to the plaintiff and the plaintiff is the actual owner-in possession of the property, in dispute, and the defendant be restrained in the peaceful possession of the plaintiff and not to raise any construction over it. It was also pleaded that n injunction in mandatory form may also be issued directing the defendant to demolish the construction raised during the pendency of the suit. The defendant filed his written statement wherein he denied the contents of the plaint. It was pleaded that Mst. Bhoti did not execute any will dated 30. 5. 1975 in favour of the plaintiff and the same was not got registered. It was also pleaded that the property, in dispute is an ancestral property of the defendant and he is in possession of the same since the time immemorial, therefore, it was prayed that the suit of the plaintiff be dismissed. The learned lower Court, on the basis of the pleadings of the parties, framed six issues. Issue No. 1 is as to whether Mst. Bhoti was the owner of the property, in dispute, or not. Issue No. 5 is whether the property, in dispute, was ancestral property of the defendant. Issue No. 2 is in respect of execution of the will dated 30. 5. 1975 and whether the plaintiff is the owner of the disputed property on the basis of the said will. Both the parties leg their evidence in support of their cases. The learned lower Court, vide its judgment and decree dated 11. 1. 1983, decreed the suit of the plaintiff and declared that the plaintiff is the owner of the property, in dispute, and the defendant is not the owner of the property, in dispute. The defendant was directed to remove his `chhappar', articles as well as possession from the disputed property within a period of two months and to handover the possession of the same to the plaintiff. The defendant was also restrained by way of injunction not to interfere in the peaceful possession of the plaintiff and for not raising any further construction on it. The first appellate Court affirmed the finding of the lower Court in respect of all the issues and dismissed and appeal of the defendant vide its judgment dated 18. 4. 1984. Under these circumstances the present second appeal has been filed by the defendant-appellant. Learned counsel for the defendant-appellant contended that both the Courts below committed an illegality in recording a finding in respect of issues No. 1 and 5 in favour of the plaintiff, only on the ground, that the defendant could not prove that Mst. Bhoti had any other house in village Helna except the disputed house, whereas the burden of proof of this fact was on the plaintiff, therefore, both the courts below have committed a serious illegality in deciding issues No. 1 and 5 in favour of the plaintiff and against the defendant. He also contended that the present suit was for declaration and permanent injunction whereas the learned lower Court granted a decree of possession also, which is without jurisdiction and on this Count also the judgments and decrees passed by both the courts below are liable to be set aside.
(3.) LEARNED counsel for the plaintiff-respondent contended that the suit of the plaintiff for declaration and permanent injunction has been decreed by the lower court as well as the lower appellate Court, both, and all the substantial questions framed in the present case are relating to question of facts and both the courts below have recorded a concurrent finding of facts in favour of plaintiff and against defendant and it is a settled proposition of law that this Court in second appeal under Section 100 of the CPC cannot interfere in the finding of fact and as such the present second appeal is, therefore, liable to be dismissed. He further contended that so far as the substantial questions of law formulated by this Court on 7. 8. 1984 is concerned, the same were formulated ex-parte without hearing the plaintiff-respondent. The questions formulated by this Court, as reproduced above, go to show that they are relating to questions of fact and there is concurrent finding in this regard by both the courts below. He further contended that in case the questions of law are formulated in absence of the plaintiff-respondent, in that event the plaintiff-respondent has every right to contend before this Court at any subsequent stage or at the time of hearing of the case that particular substantial question of law formulated cannot be said to be a substantial question of law and there is no need to decide the same. Learned counsel for the defendant-appellant, in rejoinder, contended that once the substantial questions of law are formulated then it is not open for the respondents to contend that no substantial questions of law involves in the case and that the questions of law so formulated by this Court are relating to question of fact, therefore, there is no merit in the contention of the learned counsel for the plaintiff-respondent in this regard and this Court should decide both the substantial questions of law formulated by this Court. I have heard learned counsel for both the parties and minutely scanned the impugned judgments as well as the record of both the Courts below. ;