9911796707
TMI Blog2008 (12) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... g the plaint allegation and alleging that the plaintiff is neither the owner nor is in possession of the same. The land was a vacant land and the defendants have occupied the same since before the abolition of Zamindari and are living therein by constructing a 'kachcha' house. The suit was decreed by the Court of first instance holding that the plaintiff is the owner in possession of plot No. 358 and the land in dispute is part of it. The defendants are owners of plot No. 357 and their house also exists on the said plot. Aggrieved by the judgment, order and decree of the trial Court, the defendants preferred a civil appeal. In the civil appeal three additional issues were framed and ultimately the appeal was allowed and the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court stands vitiated under law. The lower appellate Court had framed the following three additional issues in appeal : The additional issues 2 and 3 framed by the appellate Court are virtually the same as have been framed by the trial Court as issues No. 1 and 6. Thus, these two issues are common and as such the lower appellate Court was not justified in framing these two additional issues as they have already been framed by the trial Court. Now only additional issue No. 1 alone is the new issue. The said issue is, whether the disputed property on the spot is identifiable or not ? Learned counsel for the respondents has submitted that as for as this issue is concerned the property was not identifiable as the area or the dime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and it has come to be recorded for the first time in the year 1993. Undisputedly, the entry of plot No. 358 in the revenue records of Nagar Panchayat is continuing since 1994. The suit was instituted in the year 1999 therefore, on the date of the institution of the suit the land in dispute was clearly identifiable on the basis of its number existing in the revenue records. Thus, merely for the reasons that the area of the land or its boundaries have not been disclosed in the plaint, the lower appellate Court was not correct in holding that it is not identifiable. In this connection it has been urged that the issue can not be decided by the High Court in this appeal and the matter requires remand. The submission is not at all convincin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all evidence on record and for cogent reasons had held that the plaintiff-appellant is in possession of the disputed land and is the owner of the same. The entries of the Panchayat records supported the finding of ownership so returned by the first Court in favour of the plaintiff-appellant. Thus, the lower appellate Court manifestly erred in law in reversing the same solely on the ground that the land is not identifiable. In view of the discussion I hold that in the present set of facts and circumstances there was only one additional new issue which was framed by the lower appellate Court. The decision on the said issue required no further evidence as the land in dispute was clearly identifiable on the spot by the plot number given by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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