Heard Shri Rajiv Lochan Shukla, learned counsel for the appellants and Shri Lalit Kumar, learned counsel for the respondent no.1.
This second appeal arises out of proceedings under Order 21 Rule 97, 99 and 101 C.P.C. which was registered as Misc. case no. 60 of 2008. It was instituted by the three appellants. Additional Civil Judge (Senior Division), Court No.1, Bulandshahar dismissed the objections through judgment and decree dated 5.2.2010 against which applicants-appellants filed Civil appeal no.23 of 2010. Additional District Judge, Court No.2, Bulandshahar dismissed the appeal on 9.9.2011 hence this second appeal.
The proceedings may aptly be described as utter abuse of process of court.
Respondent no.1 - Smt. Rashidan instituted suit for eviction against respondent no.2 Fatto alias Fatima who is mother of the three appellants in the form of Original suit no.274 of 1986. Property in dispute was a house. Suit was decreed in the year 1989 (exact date not given, judgment and decree passed in the said suit were also not on record before the courts below as stated by learned counsel for both the parties). Appeal filed against the same was also dismissed. Thereafter decree was put in execution.
Appellants filed objection under Order 21 Rule 97 C.P.C. in the execution stating therein that they were owners of the house in dispute as Shri Nasir Ahmad on 24.7.1987 acting as attorney of the original owner had executed sale deed thereof in faovur of the appellants who were minor at that time hence the property was sold to them under the guardianship of their mother-respondent no.2 in this appeal and the sole respondent in the suit, (Original suit no.274 of 1986). Shri Nasir Ahmad executed the sale deed dated 24.7.1987 claiming to be general power of attorney holder of Shri Iqbal Ahmad and Javed Ahmad. However, in the proceedings giving rise to the instant second appeal both the parties admitted that the property belonged to Nawab Ismail Khan. Only Abdul Rehman, appellant no.3 examined himself who said that he did not remember anything which occurred ten years before 1999 when he was giving evidence. The executant of the sale deed Nasir Ahmad stated in evidence that Nawab Mohd. Ismail Khan gifted the property orally to Begum Ashfaq Jamani his daughter. He further stated that written gift deed was executed. Copy of power of attorney was not filed only, photostat copy was filed. Respondent no.2 in the suit of 1986 never asserted that she had purchased the property as guardian of her sons. Accordingly, there is absolutely no error in the impugned judgment and decree.
Through amendment two substantial questions of law have been added in the grounds of appeal to the effect that the judgment of the trial court is illegal as issues were not framed and judgment of the Lower appellate court is illegal as it did not formulate the points for determination as required by Order 41 Rule 31 C.P.C. As far as the second question of law is concerned it is concluded by Full Bench of this court reported in Bankey Lal vs. Durga Prasad A.I.R. 1931 Allahabad 512 according to which substantial compliance with the said Rule is sufficient. The point which was involved in the instant case has thoroughly been discussed and decided by the lower appellate court i.e. whether appellants could establish independent right in the property in dispute. As far as first question of law is concerned, firstly it is doubtful as to whether all the provisions of the suit apply to the proceedings under Order 21 Rule 97, 99 and 101 C.P.C. even though ultimately order passed therein is treated to be a decree. Secondly, even in a suit if parties have not been prejudiced by the omission to frame issue and substantial justice has been done in the case then notwithstanding the omission to frame issues, the decision will not be set aside or remanded for a new trial vide Lakshmiji Sugar Mills Co. vs. Banwari Lal A.I.R. 1959 Allahabad 586 and Mussu Mat Mitna vs. Syud Fuzlrub 1870 (13) Moore's Indian Appeal 573 (Privy Council). Similarly the Supreme Court has held that where in spite of the omission of an issue or the unsatisfactory nature of the issues framed, the parties are alive to the point, have adduced evidence on it, and have discussed it in the trial court, judgment and decree will not be set aside vide Shaikh Mahamad Umarsaheb v. Kadalaskar Hasham Karimsab A.I.R. 1970 S.C. 61 and Bhairab Chandra vs. Ranadhir Chandra A.I.R. 1988 S.C. 396.
Accordingly, there is no error in the impugned findings. No substantial question of law is involved. Second appeal is dismissed under Order 41 Rule 11 C.P.C.
Learned counsel for the appellant has in the end argued that the Lower appellate court wrongly directed the appellants to pay Rs.15,000/- as fine to respondent no.1 - Smt.Rashidan. The question of setting aside the said direction or reducing the fine/cost may be considered if within two weeks from today appellants and respondent no.2 voluntarily deliver possession of the house in dispute to respondent no.1. In that eventuality after delivery of possession an application for modification of this order in respect of the fine imposed by the lower appellate court may be filed.
Order Date :- 9.11.2011 RS