1. Heard learned counsel for the appellant on the point of admission of second appeal and perused the records.
2. Original suit was filed by plaintiff for relief of prohibitory injunction restraining defendant from demolishing the construction of plaintiffs over disputed land.
3. In their written statement, the defendants pleaded that disputed land is a "reserve forest" land which cannot be used for non forestry purposes without permission of Government of India, therefore plaintiffs have no right to raise any construction over it and used it. As such their suit is liable to be dismissed.
4. After affording opportunity of hearing to the parties the trial court had decreed the original suit with finding that portion of land over which disputed property situates, was no declared as reserved forest.
5. In first appeal filed by the defendant (U.P. State and Forest Department) the document was filed by defendant/appellant under Order 41, Rule 27 which was admitted. After that first appellate court had afforded opportunity of hearing to the parties and decided the appeal by which appeal was allowed and original suit was dismissed. The first appellate court had held that disputed land has been notified as reserve forest land under Section 4/20 Indian Forest Act. Then plaintiff of original suit had preferred the present second appeal.
6. Learned counsel for the plaintiff/appellant contended that the document presented in first appellate court under Order 41, Rule 27 CPC was not admissible in evidence, and also no opportunity of hearing was given to the plaintiffs to rebut the evidences relating to it; therefore the judgment of first appellate court has, in fact, been passed without affording opportunity of hearing on that point which was basis of judgment of first appeal.
7. It is admitted legal position that plaintiffs have no right to claim ownership of any 'reserve forest' land. The judgment of first appellate court is based on finding that disputed land is land of "reserve forest", and record relating to it was prepared by State during pendency of litigation in lower court. But most pertinent argument by learned counsel for the appellant was that judgment cannot be passed on evidence for which opportunity of rebuttal was not afforded to plaintiffs side. Affording the opportunity of hearing is basis of judicial system. This fact has to be verified that whether for the document in question relating to notification of reserve forest the opportunity of rebuttal and proper hearing was given to plaintiffs in first appeal or not. Therefore this appeal is admitted.
8. Following substantial question of law are framed:
" 1. Whether the judgment of first appellate court was passed without affording proper opportunity of hearing to plaintiffs by first appellate court on evidence adduced under Order 41, Rule 27 CPC ? If so, its effect ?
2. Whether the document of notification of reserve forest as relied by first appellate court was not admissible in evidence, and finding of first appellate court in that regard is perverse ? If so, its effect ?
9. Summon the lower court records.
10. Issue notice to respondents. Steps may be taken by registered post/AD within 15 days.
11. List this case on 09th March, 2016 for final hearing.
12. Heard contentions of learned counsel for the appellant on interim stay application, by which it was prayed that the judgment and decree passed by first appellate court be stayed and status quo may be maintained. Considering the fact that there has been specific finding of first appellate court that during litigation disputed property has been declared 'reserve forest' by the Government, that no specific ground is taken that disputed property is not a 'reserve forest', that the appeal is being admitted only on technical ground of verifying the contention relating to alleged non-affording of opportunity of hearing in first appeal, and legally reserve forest cannot be used for non-forestry purposes or commercial purposes; therefore, it is directed that till further orders parties shall maintain status quo on spot and shall not raise any construction, shall not harm in any way flora or fauna of disputed property and shall not perform any non-forestry activity over disputed property.
Order Date :- 21.1.2016 Sanjeev