1. Heard Sri Satyendra, Advocate, for appellants and Sri Anil Sharma, Advocate, for respondents.
2. This is defendants' appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as "CPC") arising from judgment and decree dated 18.09.1999 and 25.09.1999 respectively passed by Sri R.P. Mishra, Judge, Small Causes/ Civil Judge (Senior Division), Gorakhpur in Civil Appeal No. 202 of 1991 whereby Lower Appellate Court (hereinafter referred to as "LAC") has allowed plaintiff-respondent's appeal, set aside Trial Court's judgment dated 23.10.1991 and decreed the suit by directing defendants-appellants to remove construction shown in Amin's report 78Ga and Map 79Ga with alphabets ^^v c l n^^ within three months and hand over possession of land to plaintiff-respondent failing which plaintiff shall be entitled for delivery of possession through Court.
3. Plaintiff, Chhakauri Ram Gupta, son of Ram Lal Gupta instituted Original Suit No. 507 of 1983 vide plaint dated 16.03.1983 in the Court of Additional Munsif'-I, Gorakhpur, praying for grant of mandatory injunction directing defendants-appellants not to interfere in the possession of plaintiff on the disputed land, shown in the map, at the bottom of plaint, as ^^v c l n^^ and also refrain them from dispossessing plaintiff from the said land.
4. The facts pleaded in the aforesaid plaint, as filed initially, are that plaintiff is owner of Arazi Bhumidhari No. 125, area one acre 26 dismal, situate at Mauza Mudila Urf Mundera, Tappa Khuthan, Pergana Haveli, Tehsil Sadar, District Gorakhpur along with Munni Lal, Govardhan and Jitai and in possession thereof as bhumidhar. Govardhan and Jitai transferred their entire share, and, Munni Lal some part of his share to plaintiff vide sale-deed dated 26.05.1970. Munni Lal also subsequently transferred his entire share of disputed property in favour of plaintiff vide sale-deed dated 14.06.1971. In the revenue record, disputed land was registered in the name of plaintiff bearing no. 125/1-183. Petitioner got land surrounded by a brick boundary and also raised temporary construction, i.e. Marai.
5. Defendants' father Badri was also co-sharer in disputed arazi but had no interest in the land marked as ^^v c l n^^ in the map. He (Sri Badri) had constructed a house about 7-8 years back which is shown in the map as ^^; j y o^^.
6. The map placed at bottom of plaint read as under:
7. There was another co-sharer Hari Lal whose part of share in the aforesaid arazi is shown in map as ^^i Q c n^^. Sri Hari Lal sold his share in the aforesaid property, i.e., ^^i Q c n^^ to defendants on 02.08.1977.
8. With the passage of time, there was large scale development in nearby area of disputed land as a result whereof defendants with intention to encroach over disputed land belong to plaintiff, made several attempts to take possession thereof but having failed to do so, they got a suit filed by former co-sharer Munni Lal, numbered as 129 of 1982, for cancellation of sale-deed. An injunction application was also filed but Court rejected the same on 15.02.1983. Thereafter defendants in furtherance of their misdeed of encroaching upon the land of plaintiff, visited the premises along with several unsocial elements on 15.03.1983 but due to village people having collected and opposed them, could not succeed in their attempt but threatened plaintiff that very soon they would occupy the disputed land. It is in these circumstances, aforesaid suit seeking a decree of injunction was filed.
9. Defendants filed a collective written statement dated 02.02.1983 stating that Arazi No. 125 area 1.26 dismal was in the co-tenancy of several persons including Munni Lal, Govardhan, Jitai and Hari Lal. To the knowledge of defendants, Munni Lal, Govardhan and Jitai did not execute any sale-deed in favour of plaintiff. The temporary construction of Marai was not raised by plaintiff, but it belong to defendants. Claim of ownership and possession of plaintiff was seriously disputed. The map given at the bottom of plaint was also denied and allegations that defendants got a suit filed through Munni Lal or made illegal attempt to occupy disputed land are denied.
10. Plaintiff subsequently got plaint amended vide Trial Court's order dated 24.09.1986 stating that during pendency of suit, he has been dispossessed and defendants have raised certain construction thereon. Consequently, earlier prayer and map in the plaint were all deleted and substituted by a different map and a different prayer which read as under:
^^v& clnwj fMxzh gd oknh f[kykQ izfroknhx.k fookfnr tehu eqUntka uD'kk g:Q v] c] l] n ij izfroknhx.k dks ;g gd nsrs gq;s fd os viuh leLr rkehjkr futkbZ ls Hkh ojo¶r fngkuh ikbZ tkos Lo;a gVk ys tkos vkSj ge oknh dks dCtk n[ky fookfnr tehu g:Q v] c] l] n ij o csn[kyh izfroknhx.k fnyok fn;k tkosA^^ "A. That a decree against the defendants and in favour of the plaintiff may kindly be issued directing the former to remove, on their own, all the constructions in question from the disputed land shown by letters A, B, C & D in the sitemap and the plaintiff to be given possession and occupancy over the said land by way of evicting the defendants?"
(English Translation by Court) uD[kk utjh c l^ l fookfnr tehu dksBjh;ka tehu oknh ijkx ftls izfroknhx.k Q us cuok tehu fy;k gS gjh yky n^ v n i edku f+=yksd j y edku cnzh ; o 11. Trial Court formulated following nine issues: ^^1& D;k oknh okn i= ds dFkukuqlkj fookfnr Hkwfe dk ekfyd o dkfct gS\^^ "1. Whether the plaintiff is owner having possession over the disputed land as alleged in the plaint?" ^^2& D;k okn dk ewY;kadu de fd;k x;k gS rFkk U;k; 'kqYd de fn;k x;k gS\^^ "2. Whether the suit is undervalued and the court fee paid is insufficient?" ^^3& D;k okn esa foca/ku ,oa ekSu lgefr dh ck/kk gS\^^ "3. Whether the suit is barred by the principles of estoppel and acquiescence?" ^^4& D;k okn esa nQk 34 fof'k"V vuqrks"k vf/kfu;e dh ck/kk gS\^^ "4. Whether the suit is barred by Section 34 of the Specific Relief Act?" ^^5& D;k okn esa nQk 168, teh0fouk'k vf/kfu;e dh ck/kk gS\^^ "5. Whether the suit is barred by Section 168A of the Zamindari Abolition Act?" ^^6& oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS\^^ "6. What relief the petitioner is entitled to get?" ^^7& D;k okn dk ewY;kadu vc Hkh de gS] rFkk iznRr U;k; 'kqYd vi;kZIr gS\^^ "7. Whether the suit is still undervalued and the court fee is underpaid?" ^^8& D;k izfroknhx.k Ø; ds fnu ls fookfnr Hkwfe ij v/;kflr gSa\^^ "8. Whether the defendants have been occupying the disputed land since the date of its purchase?"
^^9& D;k fopkjk/khu okn dh vof/k esa izfroknhx.k }kjk fookfnr Hkwfe ij fd;s x;s fuekZ.k ds mUewyu ds i'pkr mDr Hkwfe ij oknh iqu% vkf/kiR; izkIr djus dk vf/kdkjh gS\ ;fn gkW rks izHkko\^^ "9. Whether during pendency of the suit, the plaintiff is, after removal of the construction carried out by the defendant on the disputed land, entitled to get occupation over the said land again? If so, its effect?"
(English Translation by Court)
12. Issue 2 relating to valuation and Court fee was considered as a preliminary issue and vide order dated 02.04.1986 answered in favour of plaintiff. After amendment, issue 7 which was again in respect to valuation and Court fee was considered as preliminary issue and answered in favour of plaintiff vide order dated 12.12.1990. Thereafter issues 1, 8 and 9 were taken together and Court held that plaintiff has failed to prove his ownership or possession over disputed property, hence was not entitled to claim possession in any manner. Issues 1 and 9 were answered against plaintiff and issue 8 was answered in affirmence, i.e., in favour of defendants. Issues 4 and 5 were not pressed by defendants hence answered against them in negative. Issue 3 was answered in favour of defendants and consequently Issue 6 was answered against plaintiff as a result whereof Sri Devendra Kumar Mishra, Additional Munsif-First, Gorakhpur dismissed Original Suit No. 507 of 1983 vide judgment dated 23.10.1991.
13. Plaintiff then preferred Civil Appeal No. 202 of 1991 in the Court of Civil Judge (Senior Division), Gorakhpur. For the purpose of appeal, LAC considered, whether issues 1, 8 and 9 have been rightly decided by Trial Court or not. It held that Trial Court has erred in appreciating evidence and accordingly reversed findings in respect to Issue 1 and answered the same in favour of plaintiff. Issue 8 was also answered in favour of plaintiff and against the defendants and similarly issue 9 was also answered in favour of plaintiff. The findings of Trial Court in respect to Issue 2, 4, 5 and 7 were upheld but in respect to issue 3 also, findings of Trial Court were reversed and it was held that suit was not barred by waiver and acquiescence. In view of findings recorded on issue 1, 8, 9 and 3, LAC reversed judgment passed by Trial Court, allowed the appeal and passed a decree of mandatory injunction as prayed for by plaintiff in the amended plaint. Hence, this appeal.
14. This Court admitted the appeal vide order dated 22.12.199 on the following substantial question of law:
"(1) Whether Court below has completely misread and misconstrued oral evidence led by the defendants."
15. Subsequently, following substantial questions of law were also allowed to be raised by way of allowing amendment application vide order dated 08.08.2014:
"(2) Whether in view of the clear cut stipulation in the two sale deeds dated 26.05.1970 and 14.06.1971 regarding the area sold in favour of plaintiff read with the statement of plaintiff himself could prove the title and possession of the plaintiff over the area of 18 decimal alleged by him as the disputed plot.
(3) Whether in the absence of the observance of the provisions contained in Chapter A-V of the land records manual the Khasra entries of 1385 fasli filed by the plaintiff for the first time in appeal could have been relied upon so as to hold the title and possession of plaintiff especially when neither any opportunity to rebut the same was afforded to the appellants nor the records were summoned from the S.D.M. Court for verifying the correctness and genuineness of the said Khasra entries and the objections raised in this regard by the appellants were never considered.
(4) Whether the court below has erred in law in omitting to consider the effect of the entries in CH- Forms-5 prepared in 17.3.1979.
(5) Whether the findings of the court below regarding title, possession, location and identity of the land in dispute is perverse."
16. It is admitted to all the parties that Arazi No. 125 has a total area of one acre 26 dismal. The defendants-appellants relied on the sale-deed dated 02.08.1977 registered on the same date executed by Hari Lal whereby he transferred his 1/16 share in the aforesaid Arazi to defendants Nand lal and Sant Lal, sons of Badri which comes to .078 acre. In the sale-deed, boundary of property sold by Hari Lal is mentioned as under:
East: Land of Chhakauri West: Road Government North: House Gabbu South : House Triloki
17. Chhakauri, son of Ram Lal, has deposed his statement as PW-1 stating that Govardhan and Jitai had share of 10 dismal and Munni Lal had share of 8 dismal. Both sold their share to plaintiff.
18. I propose to consider first the questions 1, 2 and 5 together. It is not in dispute that Arazi No. 125, total area 1 acre 26 dismal, had a large number of co-sharers including Munni Lal, Govardhan, Jitai, Sukhdev, Dwarika, Chhotu and Hari Lal. Plaintiff claimed to have purchased total share of 10 dismal of Govardhan and Jitai and 8 dismal of Munni Lal vide sale deeds dated 28.05.1970 and 14.06.1971. Similarly, defendants-appellants purchased 1/6 share of Hari Lal vide sale-deed dated 02.08.1977. Therefore, four persons, namely, Munni Lal, Govardhan, Jitai and Hari Lal ceased to have any share in disputed land. All the share holders in the land in dispute had their own land demarcated after partition by metes and bounds is not the case set up by any of parties. LAC, however, has observed that both the parties have admitted that except Govardhan, Munni Lal, Jitai and Hari Lal, all other co-sharers have got their land demarcated in view of mutual settlement/ partition and were in possession of such ascertained land. Plaintiff, PW-1, in his oral deposition has said that Kashi, Sukhdev, Dwarika, Chhotu were bhumidhar and there was a partition amongst them. In cross-examination also, he has said:
^^tc nkok fd;k] rc fgLlsnkjksa esa caVokjk gks pqdk Fkk] ftlus fy[kk FkkA ;g tks nkos esa fy[kk gS fd lc yksx ,d gh lkFk IykV ua0 125 esa dkfct Fksa] rFkk lc dk dCtk la;qDr Fkk ;g ckr xyr gSA^^ "When claim was filed it was mentioned therein that partition among shareholders had taken place. The claim that all the persons were occupying Plot No. 125 together and had joint possession over it, is incorrect."
(English Translation by Court)
19. PW-2, Uma Lal, in his cross-examination said:
^^IykV ua0 125 ds fgLlsnkjksa esa caVokjk esjs lkeus ugha cfYd cgqr igys ls FkkA^^ "The partition of Plot No. 125 among shareholders did not take place before me, rather it had occurred earlier."
(English Translation by Court)
20. In what manner partition actually took place and how the land was assigned to different co-shares has not come on record. Trial Court appointed an Advocate Commissioner vide order dated 22.03.1983 for submitting a site report and map which was submitted by Advocate Commissioner on 18.05.1983. Map of disputed land shown by Advocate Commissioner is as under:
t N l cqfu;kn edku xCcw M+ c p d l d ?k >ksiM+h [ksr e =D fVu o =D fookfnr tehu ijkx gk Qwl oxSjg jk v x ; [k n t edku f=yksdh xa y j t iDdk edku cnzh 21. The report in respect to possession of parties submitted by Advocate Commissioner reads as under:
^^mijksDr eqdnek esa U;k;ky; ds vkns'k ds vuqlkj fnukad 23&03&1983 dks ekSds ij fujh{k.k gsrq x;kA oknh eqdnek feyk rFkk lUr yky o uUn yky izfroknhx.k dh ryk'k fd;k feysA mudks U;k;ky; ds vkns'k ls voxr djk;kA uksfVl dk v/kdVk o eqlUuk fn;kA uksfVl dk v/kdVk ysdj uksfVl ds iq"V ij izfroknhx.k viuk viuk nLr[kr cuk;sA rRi'pkr eSus fookfnr tehu dk fujh{k.k nksuks i{kksa dh ekStwnxh esa fd;k rFkk nkos dh pkSgn~nh ls feyku fd;kA fookfnr rkehj v] c] l] n nks Hkkxksa esa caVk gqvk ik;k x;k tks uD'kk utjh esa d] l] n] [k] o d] [k] v] c ls n'kkZ;k x;k gSA nkSjku mifLFkr yksxksa ls iwN rkN djus ij LFkku d] l] n] [k ijrh tehu ij oknh eqdnek dk dCtk ik;k x;k tks pkjks rjQ ls bZVsa dh pgkjfnokjh ls f?kjk gqvk FkkA bl LFkku ls lVs if'pe rjQ LFkku d] [k] v] c ij lUr yky coSjg izfroknhx.k dk dCtk ik;k x;k blh LFkku ij d] [k] v] c ds if'peh fgLls esa ,d eMbZ mRrj nf{k.k dh yEckbZ esa cuh gqbZ gS tks uD'kk utjh esa v] c] ?k] x ls n'kkZ;k x;k gS ftldk Nktu Vhu o Qwl dk gS rFkk bl eMbZ dk fudkl iwjc if'pe nksuksa rjQ gs tks uD'kk utjh esa ^^Mh** LFkku ij n'kkZ;k x;k gSA bl eMbZ ij izfroknhx.k lUryky oxSjg dk dCtk ik;k x;k eMbZ ds if'pe rjQ iDdh lM+d gS tks xksj[kiqj ls egkjktxat dks tkrh gS rFkk eMbZ ds iwjc rjQ dqN ijrh tehu izfroknhx.k dh gS mlds lVs iwjc oknh eqdnek dk gh [kkyh tehu LFkku d] l] n] [k gS bl [kkyh tehu ds iwjc rjQ ijkx oxSjg dk [ksr gSA eMbZ ds mRrj rjQ xCcw ds edku dh cqfu;kn LFkku p] N] t] c ij cuh gqbZ gSA eMbZ ds lVs nf{k.k rjQ LFkku v] ;] j] y ij f=yksdh dk iDdk edku gS ftldk fudkl if'pe rjQ gS f=yksdh ds edku ls lVs nf{k.k rjQ cnjh dk iDdk edku gS ftldk Hkh fudkl if'pe rjQ gSA** "In compliance of Court's order in the aforesaid case, I on 23.03.1983 went to site for inspection. I met plaintiff of the case and tried to locate defendants Sant Lal and Nand Lal and met them. They had been apprised of the court's order. I handed over counter foil and copy of the notice. Receiving the counter foil of the notice, the defendants put their signatures on the back of the notice. Thereafter, I inspected the disputed land in presence of both the parties and compared the claimed one with the boundaries. The disputed structure aa, ba, sa, da was found divided in two parts which are shown as 'ka, sa, da, kha' and 'ka, kha, aa, ba' in the site map. On inquiries from the people present there, the parti (fallow) land marked as ka, sa, da, kha was found in possession of the plaintiff of the case, which was enclosed by a brick wall. Adjacent to this place, the westward place ka, kha, aa, ba was found in possession of Sant Lal and other defendants. At this very place, in the western part of ka, kha, aa, ba; there stands a hut lying north to south shown as aa, ba, gha, ga in the map and roofed with tin and grass and having exits on both sides i.e. east and west shown to be at 'D' in the map. This hut was found in possession of Sant Lal and other defendants. To the west of the hut, there is a concrete road leading to Mahrajganj from Gorakhpur. To its east lies some parti (fallow) land of defendants. Adjacent to and east of it there lies vacant space ka, sa, da, kha of the plaintiff of the case. To the west of this vacant space, there are fields of Parag and others. To the north of the hut is laid the foundation of Gabbu's house at the place marked as cha, chha, ja, ba. Adjacent to and south of the hut, there lies Triloki's metalled house at aa, ya, ra, la whose exit is on the west. Adjacent to and south of Triloki's house, there lies Badri's house, whose exit is on the west." (English Translation by Court)
22. Plaintiff disputed the sale-deed executed by Hari Lal in favour of defendants while defendants disputed the sale-deeds executed by Govardhan, Jitai and Munni Lal in favour of plaintiff. However, concerned parties, who actually executed sale-deeds neither challenged the said sale-deeds nor the said sale-deeds have been cancelled by any competent Court of law in a dispute raised by concerned parties. Therefore, aforesaid sale-deeds and their consequence cannot be allowed to be disputed by parties for the purpose of suit in question. The suit was filed by plaintiff vide plaint dated 16.03.1983 and he sought amendment in the plaint which was allowed by Court vide order dated 24.09.1986 in which it was said that during the pendency of suit, plaintiff was dispossessed from land in dispute on which he was in possession but it was not mentioned in the newly added paragraph as to on which date and in what manner plaintiff was actually dispossessed. A vague statement has been made that aforesaid possession has been taken by defendants on land on which plaintiff was in possession. Obviously, this amendment has come after Advocate Commissioner's report dated 18.05.1983 in which he confirmed possession of defendants over land upon which plaintiff was claiming his possession. In the entire plaint, I find no assertion made by plaintiff that co-shares have got their land partitioned at any point of time. On the contrary, in para 1 plaintiff simply said that amongst several other owners, Munni Lal, Govardhan and Jitai are also bhumidhar in possession and owner of disputed land. In the sale-deeds executed by Govardhan, Jitai and Munni Lal, it is admitted case that they have not demarcated the land which they were transferring to plaintiff. This is admitted by LAC also in the impugned judgment. LAC has further observed in the impugned judgment that neither plaintiff nor defendants produced evidence of concerned parties, namely, Munni Lal, Govardhan, Jitai and Hari Lal to prove that they were in possession over particular portion of land when they executed sale-deeds. The findings in this regard recorded by LAC read as under:
^^bl rjg u rks oknhx.k dh vksj ls eqUuh yky] xkso/kZu] thrbZ us bl laca/k esa lk{; izLrqr dh gS fd vkilh caVokjs ds mijkUr vkjkth la0 125 esa fdl Hkkx ij mudk dCtk Fkk vkSj u gh gjhyky us bl laca/k esa izfroknhx.k dh vksj ls vkdj ;g izekf.kr fd;k gS fd vkjkth la0 125 esa os fookfnr Hkkx ij dkfct Fks ftldk mUgksus cSukek fd;kA^^ "In this way, neither on behalf of the plaintiffs Munnilal, Govardhan and Jeetai have adduced evidence showing which part of Plot No. 125 was in their possession after the mutual partition, nor on behalf of the defendants Harilal has certified that they had been occupying the disputed part of Plot No. 125 the bainama of which they executed."
(English Translation by Court)
23. Court below has misread statement of DW-1, Sant Lal that Govardhan, Jitai and Munni Lal transferred by sale their entire share constituting 18 dismal to plaintiff by sale-deeds by reading it as if DW-1 Sant Lal has admitted that aforesaid vendors have given possession to plaintiff over particular part of land shown as ABCD in the plaint. Plaintiff stated that he raised a boundary wall but adduced no evidence to prove it. After filing of plaint, the very first document which has come on record is Advocate Commissioner's report in which land mentioned as ABCD in the plaint was found in possession of defendants. Trial Court has founded its finding thereafter with regard to possession of plaintiff on the basis of Paper No. 24-C, Khasra of 1385 fasali, which is marked as Ex.-2 showing that an order was passed that in Arazi No. 125/1/18 tenure holder Chhakauri has raised a boundary wall on 14 dismal.
24. Revenue record is not a conclusive evidence of title or possession unless it is shown that entry made therein was after hearing all the parties. I find that entry is not in respect to Arazi No. 125. A new number was given as Arazi No. 125/1, area 0-18, and therein entry was made. The Advocate Commissioner's report is dated 18.05.1983 and it is also a piece of evidence showing on the spot facts otherwise. It does not appear from record that the said report was objected by any of the parties. Trial Court in its order dated 14.12.1983 while rejecting ad-interim injunction application has observed that Advocate Commissioner's report appears to be reliable, particularly when it has not been seriously objected by plaintiff. This also shows that ad-interim injunction which was granted initially on 16.03.1983 directing parties to maintain status quo was vacated on 14.12.1983, and, in the meantime, disputed land was found in possession of defendants-appellants. Hence, plea of plaintiff by way of amendment made subsequently in the plaint that after vacation of interim injunction, he has been dispossessed by defendants was clearly contrary to record and this aspect has been completely ignored by LAC.
25. It further appears that subsequently Court Amin was appointed to prepare site map pursuant whereto Amin visited the premises on 26.12.1988 and he surveyed the land and after measurement submitted report. This report and map submitted by Amin was accepted by Trial Court by order dated 22.11.1990. LAC has read the aforesaid evidence of Advocate Commissioner and Court Amin, observing that there existed a boundary wall shown in the Court Amin's report, but there is no mention of any permanent construction raised on the disputed land which shows that some construction was raised during pendency of suit, but it has completely misread Court Amin's report wherein he has said that disputed land was also divided in two parts, i.e. d l n [k and d [k v c. In the map submitted by Court Amin also, existence of boundary wall is mentioned therein. The relevant extract of map is as under:
26. Thus findings of LAC in this regard are clearly perverse. Thus, Question-1 is answered in favour of defendants-appellants.
27. Now coming to Question-2, I find that details of area mentioned in two sale-deeds dated 26.05.1970 and 14.06.1971 is not clear and specific. Area which form share of respective vendors, who were co-sharers in disputed land is clearly mentioned, but boundaries are not specified to ascertain as to which part of land was sought to be transferred. It is always open to a co-owner to sell his undivided share. When something was transferred by way of a document, the facts could not have been improved by oral evidence of plaintiff and with regard to possession, I have already given my findings while answering Question-1 which is against plaintiff-respondent. Question-2 is, therefore, answered against plaintiff-respondent.
28. Now coming to Question-3, it goes without saying that an additional document, if is admitted in evidence at appellate stage, it is obligatory upon Appellate Court to give opportunity to other side to lay its evidence, if any, in rebuttal and if such opportunity is not granted, the document admitted in evidence per se, if relied, would be illegal. Such procedure adopted by Appellate Court is apparently contrary to law and would vitiate further proceedings as also the findings recorded relying on such additional evidence.
29. Question-3, therefore, is also answered in favour of appellants.
30. Once the document is on record, it ought to have been considered by Court below and if such document is not considered, particularly when it is relevant to the issue considered by Court below, it goes without saying that omission of such evidence is illegal and vitiates the findings recorded by Court below. Question-4 is, accordingly, answered in favour of appellants.
31. In view of the answers given to Questions- 1 to 4, I have no manner of doubt that Question-5, without any further discussion, has to be answered necessarily in favour of appellants and is returned accordingly.
32. In the result, the appeal is allowed. Impugned judgment and decree dated 18.09.1999 and 25.09.1999 respectively passed by Lower Appellate Court is hereby set aside.
33. Matter is remanded to Court below to re-consider the appeal and pass a fresh order in accordance with law and in the light of observations made above.
Dt. 20.05.2016 PS