Case Note & Summary
This second appeal arose from a suit for perpetual injunction filed by the respondents/plaintiffs in respect of certain agricultural lands against the appellants. The plaintiffs claimed that the suit lands came to their predecessor's share after a partition effected in the year 1932 AD (1340 Fasli) and that they were in possession. The defendants denied any partition but did not claim possession. The Trial Court decreed the suit, holding that the plaintiffs had proved their possession and the fact of partition. The First Appellate Court affirmed the decree. The defendants, now appellants, challenged the concurrent findings in this second appeal. The primary ground raised was that the judgment of the lower Appellate Court was illegal because it did not contain proper points for consideration as required under Order 41 Rule 31 of the Code of Civil Procedure, 1908. The appellant's counsel relied on the decision in Smt. Anita M. Harretto v. Abdul Wahid Sanaullah (AIR 1985 Bombay 98), where it was held that merely asking whether the trial court's judgment was correct is an inadequate method of complying with Order 41 Rule 31. In the present case, the lower Appellate Court had framed a point for consideration asking whether the trial court's findings were in consonance with the evidence. The High Court acknowledged that this formulation was similar to the one criticized in the cited precedent but upon examining the substantial discussion in the lower Appellate Court's judgment, it found that the judge had indeed considered the two critical questions: whether a partition occurred in 1932 AD and whether the memo of partition was admissible in evidence, and whether the plaintiffs proved their possession of the suit lands. The High Court noted the cogent reasoning recorded by the lower Appellate Court and concluded that the judgment need not be set aside merely because the point for consideration was not properly framed. It further held that no substantial question of law was involved in the appeal; the findings were purely factual and no fault could be found with them. Consequently, the second appeal was dismissed.
Headnote
A) Civil Procedure - Appellate Procedure - Order 41 Rule 31 of Code of Civil Procedure, 1908 - The lower appellate court's failure to frame specific points for determination as required under Order 41 Rule 31 did not vitiate the judgment, as its discussion considered the core issues of partition and possession. The court distinguished the precedent in Anita M. Harretto, holding that while merely questioning the trial court's correctness is inadequate, the reasoning here was cogent, hence no substantial question of law arose - Held that the second appeal must be dismissed (Paras 3-5).
Issue of Consideration
Whether the lower appellate court's judgment is vitiated for not framing proper points for consideration as mandated by Order 41 Rule 31 of the Code of Civil Procedure, 1908, and whether any substantial question of law arises in the second appeal.
Final Decision
The second appeal is dismissed. The concurrent findings of the Courts below in favour of the plaintiffs are upheld.
Law Points
- Order 41 Rule 31 of Code of Civil Procedure
- 1908 - requirement of framing points for determination
- substantial question of law
- concurrent findings of fact
- perpetual injunction based on proof of possession
