1. Earlier an original suit no. 1112/1970 was filed by one Mohd Muslim against Abrarul Haq and Inamul Haq for relief of permanent injunction. The said suit was dismissed by the trial court. But first civil appeal no. 258/1977 was allowed in favour of plaintiff Mohd. Muslim. Second appeal no. 248/1989 was dismissed by the judgment dated 22.07.1979 of this Court. Thereafter, sale-deed of disputed property of that case was executed by Mohd. Muslim in favour of Kaniz Fatima and Shakeel.
2. Original suit no. 1559/1994 Abararul Haq v. Mohammad Noor Hasan was filed for the relief of permanent injunction which was decreed by trial court. In said suit, counter-claim was filed by defendant no.-1 Mohd. Noor Hasan (who was substituted by Kaniz Fatima and others) was dismissed by the trial court.
3. Another original suit no. 786/2000 (Kaniz Fatima Vs. Abrarul Haq & others) was filed for permanent injunction regarding removal of construction over path-way, which was decreed.
4. Civil appeal no. 43/2013 was preferred against the judgment of original suit no. 786/2000, the Civil Appeal no. 44/2013 was preferred against decreeing of original suit no. 1559/1994 and and the Civil Appeal no. 45/2013 was preferred against dismissal of the counter-claim of defendant no.-1 in said original suit. Additional District Judge, Court No.-3, Gorakhpur had consolidated the three civil appeals and passed the judgment dated 8.1.2016 by which all three appeals were dismissed.
5. Defendants of original suit no. 1559/1994 (who had filed counter-claim) had preferred present second appeal regarding dismissal of their counter-claim in original suit no. 1559/1994 and dismissal of the civil appeal no. 45/2013.
6. Heard argument of learned counsel for the appellants who pointed out that finding of first appellate court regarding dismissal of civil appeal no. 45/2013. In paragraph-21 of the impugned judgment, first appellate court had discussed the fact relating to original suit no. 1112/1970, civil appeal no. 258/1977, second appeal no. 248/1989 and held that facts relating to this litigation was deliberately suppressed by plaintiffs, so appeal (CA 45/2013) is liable to be dismissed.
7. In fact this contention of learned counsel for the appellants appears correct and acceptable that by inadvertence or any confusion, first appellate court had treated the civil appeal no. 45/2013 preferred by plaintiffs of the original suit like other two appeals, whereas in fact this first appeal (CA 45/2013) was preferred by defendant who had filed counter-claim. The counter-claim was dismissed on the ground that defendant had failed to prove that his vendor was owner of the property being sold, whereas the judgments of litigation relating to original suit no. 1112/1970 is apparently proof of Mohd. Muslim's (the vendor of defendants, who had filed counter-claim in original suit) ownership of disputed property. The hearing and clarification of alleged incorrectness and perversity is required. Therefore this appeal is admitted.
8. Following substantial question of law is framed:
"Whether the finding of trial court and first appellate court are erroneous and perverse in the light of judgment passed in appeals relating to original suit no. 1112 of 1970 ? If so, its effect ?"
9. Summon the lower court records.
10. Issue notice to the respondents. Steps within 15 days by both ways. List after service of notice.
11. The execution of judgment and decree of original suit no. 786/2000 may proceed, but respondents are directed not to raise any new constructions over disputed property till further orders.
Order Date :- 29.4.2016 Sanjeev