Heard learned counsel for the appellant on the point of admission of second appeal.
In its judgment dated 31.8.2015, the trial court had given finding that although predecessor in interest defendant had purchased the property of length of 74 ft. 8 inch from earlier owner and sold the property to defendant/appellant, the length of which was mentioned 86 ft. 8 inch, but since boundary of earlier sale deed dated 28.07.1994 executed by earlier owner to Afsar Ali and boundaries of later sale deed dated 16.4.1999 executed in favour of defendant are same. This contention of learned counsel for the appellant should be considered that such finding of trial court was not specifically reversed in first appeal but the impugned judgment dated 25.01.2016 was passed by first appellate court.
This contention of learned counsel for the appellant should be considered that when issue no. 4 was decided by trial court as suit being barred by Section 34,38 and 41 of Specific Relief Act then without reversing this finding, first appeal should not be allowed. These points needs consideration. Therefore, appeal is admitted.
Following substantial question of law is framed.
"1. Whether the judgement of first appellate court in civil appeal no. 97 of 2005 is erroneous and perverse when it has allowed the appeal without reversing the finding of trial court regarding non maintainability of suit and description of property ? If so, its effect ?"
Summon the lower court records.
Issue notice to the respondents. Steps within 15 days by both ways.
List after service of notice.
Till further orders, parties shall maintain status quo and shall not raise any construction over it Order Date :- 20.4.2016 Sanjeev