Case Note & Summary
The original plaintiff (since deceased, represented by his legal heir) filed a suit for removal of encroachment against defendant nos.1 and 2, claiming that he had purchased 4 acres of land in Survey No.25, Amravati, on 28.12.1995 through a registered sale deed executed by his power of attorney holder. He alleged that defendant no.1 encroached upon 35 R and defendant no.2 encroached upon 3 R of his land from the southern side. Despite requests, the encroachment was not removed, leading to the suit. The trial court decreed the suit in favor of the plaintiff. Defendant nos.1 and 2 appealed to the first appellate court, which reversed the trial court's decree and dismissed the suit. The plaintiff's legal heir filed a second appeal in the High Court. The High Court admitted the appeal on the substantial question of law whether the first appellate court had framed proper points for determination as required under Order 41 Rule 31 CPC. The High Court found that the appellate court had not framed any points for determination, which is a mandatory requirement. The appellate court's judgment was set aside and the matter was remanded to the first appellate court for fresh disposal after framing proper points and giving both parties an opportunity to be heard. The High Court did not express any opinion on the merits of the case.
Headnote
A) Civil Procedure - First Appeal - Points for Determination - Order 41 Rule 31 CPC - The first appellate court failed to frame points for determination as required under Order 41 Rule 31 CPC, which is a mandatory requirement - The appellate court's judgment was set aside and the matter remanded for fresh disposal after framing proper points and giving opportunity to parties - Held that failure to frame points vitiates the appellate judgment (Paras 7-10). B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court admitted the second appeal on the substantial question of law regarding the appellate court's failure to frame points for determination - The appeal was allowed and the matter remanded - Held that the appellate court's judgment was unsustainable (Paras 1, 11).
Issue of Consideration
Whether the first appellate court's judgment was vitiated for not framing proper points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure, 1908, and whether the findings on title and possession were perverse.
Final Decision
The second appeal is allowed. The judgment of the first appellate court is set aside. The matter is remanded to the first appellate court for fresh disposal after framing proper points for determination and giving both parties an opportunity to be heard. No order as to costs.
Law Points
- Order 41 Rule 31 CPC
- Section 100 CPC
- substantial question of law
- points for determination
- duty of appellate court
- remand
