1. Heard counsel for the partieand perused records.
2. Plaintiff of Original Suit NO. 69/1996, Dr. Ram Raj Singh v. Ramji & others had pleaded himself to be the owner of earlier evacuee property on basis of alleged purchase of the same by order of the Sub-Divisional Magistrate (SDM) of the area. He further pleaded that he is in possession of said disputed property as owner and defendants have no right, title or interest in this property. But they are unauthorizedly attempting to interfere in his possession. Therefore, he has sought relief for permanent injunction by original suit against defendant.
3. After affording opportunity of hearing in original suit, Civil Judge (S.D.), Ghazipur had dismissed the suit by its judgment dated 14.1.2011 with finding that plaintiff cannot be the owner of evacuee property unless it is transferred to him by Custodian General of evacuee property. In plaint disputed property was described to situate in plot no. 1912 Gha, but trial court had given finding otherwise and held that it is not proved.
4. Against the judgment of the trial court, Civil Appeal No., 1/ 2011 Dr. Ram Raj Singh v. Ramji & others was preferred. The first appellate court had afforded opportunity of hearing, and at the time of judgment framed two points of determination. First was as to whether disputed land is part of plot no. 1912-Gha, and second was as to whether plaintiff is in owner in possession of disputed property detailed in plaint map by letters ''A B C D'. After hearing the parties, the first appellate court had decided first point of determination in favour of plaintiff appellant and held that disputed land is part of plot no. 1912-Gha. At the time of giving finding on second point of determination, the first appellate court had confirmed this finding of trial court that plaintiff cannot be the owner of disputed property on the basis of alleged sale in his favour by order of the SDM. This court had again held that this evacuee property was settled with Custodian who had right to sell it, but no such sale was performed by him, and the SDM has no right to execute the sale of such property; therefore the plaintiff-appellant is not the owner of disputed property. On the basis of this finding, first appellate court had dismissed the appeal.
5. It is pertinent to mention that in spite of second point of determination being framed on point of ownership and possession, before the dismissing the appeal, the lower appellate court had given its finding only on point of ownership and not on point of possession.
6. Learned counsel for the appellant conceded this legal position that plaintiff cannot be the owner of evacuee property on the basis of any sale or transfer carried out in compliance of order of the SDM, because same was not the competent authority; but he further pleaded that this fact has been proved that he is in possession of disputed property on the basis if permission of SDM and this property is part of plot No. 1912-Gha, and that the defendant-respondents are not owner of this property. Therefore, on the basis of his possessory right, title he has right to get relief of permanent injunction, which was refused to him by lower appellate court without any finding on this point.
7. These contentions of appellant side were refuted by respondent side. Counsel for the respondent contended that plaintiff appellant had obtained possession of disputed property in unlawful manner and since his ownership is not proved, therefore he is not entitled for relief of permanent injunction sought in plaint. Therefore, the appeal should be dismissed.
8. It is correct and legal finding of two lower courts that although document of sale was executed in favour of plaintiff-appellant under the orders of SDM regarding disputed evacuee property, but he cannot acquire legal ownership right of any evacuee property, and such orders or permission of SDM is ultra vires and illegal. But there remains a point of possession. The appellants side had alternative argument for relief of permanent injunction on ground of possessory right and title. Their contention was that they might have come in possession of disputed property in irregular manner by wrong order of the SDM, but they have been formally put in its possession . They cannot be treated as rank trespasser. The submission of appellant side was that since defendant-respondent are not owner or title holder or in possession of disputed property therefore they cannot be permitted to interfere in plaintiff-appellant's possession of disputed property. Therefore, plaintiff having the possessory title of this property has right to seek injunction against defendant. This argument appears theoretically acceptable which needs determination.
9. This fact had to be determined by lower court as to whether plaintiff is in possession of disputed property or not. The Trial Court had given finding against him, but the first appellate court had framed points of determination, as stated above, about his possession, but had not given any finding on point of possession and decided the matter on the basis of title, apparently ignoring the point relating to possessory title.
10. Framing of point of determination and not giving the finding on it and deciding the matter amounts to depriving the appellant a right of hearing. Right of hearing is the core point of judicial system which should be afforded to every contesting party. In this matter the appellant had, inter alia, sought relief on the basis of possessory title for which point of determination was framed, but no finding was given by lower appellate court. This contention of appellant side cannot be said to be totally unacceptable that if such finding had been given in favor of appellant then there might be possibility that the judgment of first appellate court might have been otherwise. Thus not giving finding on framed point of determination by first appellate court amounted to depriving the appellant the right of hearing, and causing him prejudice, which is erroneous and illegal. This is big error and perversity in the impugned judgment dated 15.3.2016 of first appellate court. For rectifying this defect only proper remedy is to remand the matter, because oi this matter is decided by this Court then at least one party would be deprived of right of one appeal.
11. For the reasons discussed above this appeal is allowed. Impugned judgment dated 15.3.2016 passed by first appellate court is set aside and the matter is remanded to first appellate court with a direction to afford opportunity of hearing to the parties, and if necessary re-frame point of determination, and then pass the judgment in accordance with law by giving specific finding on each point of determination.
12. The first appellate court is directed to decide appeal very expeditiously, if possible, within four months from the date of receipt of certified copy of this order.
Order Date :- 29.4.2016 SKS