- (1.) Heard learned counsel for the parties. Following substantial question of law arises in this appeal :- Whether the judgment and decree of the first appellate court is no judgment in the eye of law because of the fact that the first appellate court did not consider the facts, issues and evidence and even did not consider the arguments advanced by the appellant on merit of the appeal on various issues framed by the trial court and consequently, the judgment of the first appellate court cannot be said to be a judgment recording or upholding the finding of fact involved in the lis between the plaintiff and defendant ? At the request of both the learned counsels for the parties, this appeal is decided.
(2.) It appears from the judgment and decree of the trial court dated 8.2.2002 that the plaintiff filed suit for permanent injunction, prohibitory as well as mandatory, upon which the trial court framed as many as 12 issues. The trial court heard the arguments in detail which is apparent from the judgment dated 8.2.2002 and thereafter recorded the finding issuewise. The trial court held that the land in question is land of way and the patta issued in favour of the present appellant is, therefore, null and void. The trial court decreed the suit and an appeal was preferred by the defendant.
(3.) The first appellate court after mentioning the facts in brief considered the request of the appellant for framing additional issues and observed that the trial court framed the issues in presence of both the parties and the appellant did not submit any application for framing more issues or amendment of the issues. While deciding this point, the first appellate court straightway observed that the finding recorded by the trial court on all issues is in accordance with law. The first appellate court also observed that the issues proposed by the appellant are similar to the issues already framed by the trial court and there is a difference of language only but even if the appellant was of the view that the issues were not properly framed, then he should have requested before the trial court and, therefore, there is no need to frame the issues and remanded the matter to the trial court.;