# Smt. Bajifunnisha v. Khunni Lal & Ors

- **Citation:** (2024) 5 ILRA 1431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Second Appeal No. 163 of 2008
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bajifunnisha-v-khunni-lal-ors-51933
- **Pages:** 17

## Headnote

Civil Law- Civil Procedure Code, 1908 -
Sections 100 - Order XLI Rules 11, 31, 35A, 80 - Uttar Pradesh Municipalities Act,
1916 - Sections 80, 185, 186, 221, 326, -
Specific Relief Act, 1963 - Section 41 -
Limitation Act, 1963 - Article 54 - Second
Appeal - arising out of a suit for mandatory
injunction - jurisdiction- Held, the Lower
Appellate Court is the last Court of fact and
it cannot be said that the inferences drawn
by it on the issues arising between parties
are perverse in any manner - the Court
does
not
have
the
jurisdiction
to
reappreciate evidence under Section 100 of
CPC and substitute a view of our own based
on pure appreciation of evidence, unless
there be some perversity or illegality -
regarding issue (A), the aforesaid Court
has
substantially
complied
with
the
requirements of Order XLI Rule 31 of CPC ,
while issue (B) and (C) is answered in
negative as the said Court has not
committed any illegality in reversing the
decree passed by the Trial Court, as it was
based on all relevant issues and cogent
reasoning and also had rightly drawn
conclusion that plaintiff does not have a
right of frontage or access to the public
road on the northern side, as the frontage
of the shop in question, in the documents
of title produced by the plaintiff, lies to the
south of the said shop - Appeal dismissed
with cost- directions, accordingly. (Para -
49, 50, 51, 52, 53)

Appeal is dismissed with cost. (E-13)

List of Cases cited:

## Text

_Characters 0–39,985 of 60,819. This is a partial read: ask again with offset=39985 for what follows._

5 All. Smt. Bajifunnisha Vs. Khunni Lal & Ors.
1431
with the guilt of the accused is possible from
the evidence available on record.

37. The appellate Court, in order to
interfere with the judgment of acquittal
would have to record pertinent findings on
the above factors if it is inclined to reverse
the judgment of acquittal rendered by the
trial Court.

38. In the light of above proposition of
law if we go through the impugned
judgment and order, we find that the trial
court had given cogent and convincing
reasons for recording the finding of acquittal
against the accused-respondent and that the
acquittal of the accused-respondent is
plausible and justifiable view emanating
from the discussion of the evidence
available on record and does not suffer from
any infirmity or perversity. Therefore, we
are of the opinion that the impugned
judgement and order passed by the trial
court is just, proper and legal and do not call
for any interference by this Court.

39. The present government appeal
lacks merit and is accordingly dismissed.

40. Trial court's record be remitted
back forthwith.
----------
(2024) 5 ILRA 1431
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 163 of 2008

Smt. Bajifunnisha ...Appellant
Versus
Khunni Lal & Ors. ...Respondents

Counsel for the Appellant:
Sri B.N. Agarwal, Sri Sanjay Agarwal

Counsel for the Respondent:
Sri Subhash Kumar, Sri Subhash Chnadra, Sri
Sunil Dutt Kautilya, Sri Umesh Kumar Gupta

Civil Law- Civil Procedure Code, 1908 -
Sections 100 - Order XLI Rules 11, 31, 35A, 80 - Uttar Pradesh Municipalities Act,
1916 - Sections 80, 185, 186, 221, 326, -
Specific Relief Act, 1963 - Section 41 -
Limitation Act, 1963 - Article 54 - Second
Appeal - arising out of a suit for mandatory
injunction - jurisdiction- Held, the Lower
Appellate Court is the last Court of fact and
it cannot be said that the inferences drawn
by it on the issues arising between parties
are perverse in any manner - the Court
does
not
have
the
jurisdiction
to
reappreciate evidence under Section 100 of
CPC and substitute a view of our own based
on pure appreciation of evidence, unless
there be some perversity or illegality -
regarding issue (A), the aforesaid Court
has
substantially
complied
with
the
requirements of Order XLI Rule 31 of CPC ,
while issue (B) and (C) is answered in
negative as the said Court has not
committed any illegality in reversing the
decree passed by the Trial Court, as it was
based on all relevant issues and cogent
reasoning and also had rightly drawn
conclusion that plaintiff does not have a
right of frontage or access to the public
road on the northern side, as the frontage
of the shop in question, in the documents
of title produced by the plaintiff, lies to the
south of the said shop - Appeal dismissed
with cost- directions, accordingly. (Para -
49, 50, 51, 52, 53)

Appeal is dismissed with cost. (E-13)

List of Cases cited:

1. Malluru Mallappa (dead) through Legal
Representatives Vs Kuruvathappa & ors., (2020)
4 SCC 313

2. H. Siddiqui (dead) by LRs Vs A. Ramalingam,
(2011) 4 SCC 240
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
3. G. Amalorpavam & ors Vs R.C. Diocese of
Madurai & ors., (2006) 3 SCC 224

4. Santosh Hazari Vs Purushottam Tiwari
(deceased) by LRs, (2001) 3 SCC 179

5. Bharatkumar Dhanajibhai Kuber Vs Markand
Umedlal Joshi, 2018 SCC OnLine Guj 3114

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiff's second appeal,
arising out of a suit for mandatory
injunction.

2. The plaintiff, Bajifunnisha,
instituted Suit No.217 of 1983, initially
against
the
State
of
Uttar
Pradesh,
represented by the Collector, Jalaun at Orai
and the Municipal Board, Kalpi, District
Jalaun through its Administrator, praying
that a decree of mandatory injunction be
passed in her favour, directing that the
tinshed
worked
illegal
construction,
admeasuring 15'x9', shown by letters ABJK
in the plaint map, situate to the north of the
plaintiff's shop, shown by letters ABHI, be
removed by the defendants, rendering the
land underlying the offending construction
in the same state as it formally was, so that
the plaintiff may use it for her access
(ingress-egress) in the manner, it was earlier
done.

3. Khunni Lal, who was a tenant in
one of the plaintiff's shops and had raised the
tinshed worked construction denoted by
letters ABJK, was impleaded later on as
defendant No.3 to the suit. This was done
because in substance, the decree that the
plaintiff claimed was against Khunni Lal;
not the State or the Municipal Board.

4. The facts giving rise to this
appeal are these:

Smt. Bajifunnisha, the plaintiffappellant, who shall hereinafter be called
'the plaintiff', instituted the suit with
allegations in the plaint to the effect that she
is the owner of a shop, situate in Tarnanganj,
Town Kalpi, District Jalaun, denoted by
letters ABHI in the plaint map. To the east of
the shop under reference, which shall be
called 'the shop in question', there are other
shops of the plaintiff. To the west of the shop
in question, lies land which is parti; to the
north, the frontage of the plaintiff's shop and
thereafter land described as parti. To the
south of the shop in question is a road. The
plaintiff is the owner of other shops, besides
the shop in question, of which the former
owner was the late Mustaq Ali son of Danish
Ali, a resident of Mohalla Bhattipura, Town
Kalpi, District Jalaun. The shop in question
and the other shops are situate on a part of
Nazul land, Plot No.4475 and shown in the
Khasra Abadi for town Kalpi, relating to the
year 1902-1903. A part of Nazul Plot
No.4475 aforesaid was taken on lease in the
year 1958 by Mustaq Ali.

5. Mustaq Ali got a plan sanctioned
by the Municipal Board, Kalpi for the
purpose of constructing five shops on the
said land. He did construct five shops in
accordance with the sanctioned plan. Each
of these five shops had a projection (chhajja)
sanctioned for them on both sides, to wit, the
north and the south. The five shops last
mentioned were transferred by way of sale
in the plaintiff's favour by Mustaq Ali vide
registered sale deed dated 15.09.1975. In
this manner, the plaintiff became owner of
the shop in question and the other shops that
Musaq Ali owned. Her name was entered in
the assessment register of the Municipal
Board relating to the shop in question as
well as the other shops, mutating out Mustaq
Ali's rights.
5 All. Smt. Bajifunnisha Vs. Khunni Lal & Ors.
1433
6. The shop in question was let out
to Khunni Lal, defendant No.3 to the suit at
a rent of Rs.30/- per mensem. Khunni Lal,
while in tenancy occupation of the shop in
question, raised a wall in front of it i.e. to the
north of the said shop, the pucca wall raised
running from east to west. The wall was
raised as aforesaid in the month of June,
1981 and a tinshed worked roof placed over
it, occupying an area 15'x9', denoted by
letters ABJK in the plaint map. The
aforesaid unauthorized construction was put
up
after
demolishing
the
plaintiff's
projection
(chhajja)
illegally
and
unauthorizedly, about which the plaintiff
says that Khunni Lal had no right. The
plaintiff, accordingly, served a notice upon
Khunni Lal on 20.07.1981, saying that the
construction raised was without authority
and illegal, which ought to be removed. In
answer, Khunni Lal, by a reply, informed the
plaintiff that the construction that he had
raised over land to the north of the shop in
question was rented out to him by the
Municipal Board, Kalpi.

7. The plaintiff says that the shop in
question has two doors, one to the north and
the other to the south. The shop in question,
owned by the plaintiff, has its frontage to the
north and that using this frontage, the shop
in question has its access to the highway.
The land to the north of the shop in question
is the plaintiff's appurtenant land. She has
the right of access and use under the law
over the said land and this beneficial use and
access has been in vogue after construction
of the shop in question. The construction
raised by Khunni Lal leads to a violation of
the plaintiff's rights, which would happen in
the future too. The plaintiff has a right to
approach the highway from the shop in
question and the constructions raised have
led to the value of the said shop being
diminished.
8. The plaintiff says that land to the
north of the shop in question is the shop's
frontage and appurtenant land, which the
Municipal Board, Kalpi has no right to let
out to Khunni Lal. Also, Khunni Lal has
deposited earth to the north of the shop in
question, raising its height, which leads to
water logging and blockage of water
drainage to the western side. Now, the other
shops, that the plaintiff owns, suffer water
logging up in the front, causing the other
tenants, who are in occupation, considerable
annoyance,
besides
imperiling
those
constructions by a possible collapse.

9. The plaintiff says that the
Municipal Board, Kalpi, their officers and
servants are in connivance with Khunni Lal
and have damaged the frontage of the shop
in question. According to the plaintiff, it is
for the said reason that the illegal
construction raised to the north of the shop
in question by Khunni Lal has not led the
Municipal Board to proceed against him
under Section 185 of the Uttar Pradesh
Municipalities Act, 1916 (for short, 'the Act
of 1916') though the officers and servants of
the Municipal Board have been cognizant of
the offending construction. The Municipal
Board, defendant No.2 to the suit, in breach
of their duties, are not taking any action
against Khunni Lal.

10. The plaintiff says that under the
circumstances, she is entitled to a mandatory
injunction, directing the defendants to the
suit to cause removal of the offending
constructions denoted by letters ABJK (for
short, 'the suit property'), lying to the north
of the shop in question. The plaintiff has
asserted that the suit property is owned by
the State and in the management of the
Municipal Board. Since the Municipal
Board have let out the suit property to
Khunni Lal, which the State owns, the State
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
represented by the Collector and the
Municipal
Board,
represented
by
its
Administrator, have been impleaded as
defendant Nos.1 and 2 to the suit.

11. The plaintiff also says that she
has caused to be served a composite notice
dated 31.03.1983 under Section 80 of the
Code of Civil Procedure, 1908 (for short,
'the Code') and Section 326 of the Act of
1916 upon defendant Nos.1 and 2,
respectively, which they have received on
02.04.1984, but not caused the suit property
to be restored, after demolishing the
offending construction.

12. By the amendment and
impleadment undertaken pending suit,
Khunni Lal was impleaded as defendant
No.3 to the suit and the mandatory
injunction earlier directed against defendant
Nos. 1 and 2 alone, claimed against him as
defendant No.3, as well.

13. Defendant Nos.1 and 2 to the
suit, who are proforma respondent Nos.2
and 3 to this appeal, respectively, filed a
joint
written
statement.
Defendantrespondent Nos. 2 and 3 to the appeal, shall
hereinafter be referred to as 'defendant
Nos.1 and 2', respectively. The case of the
said defendants, pleaded in the written
statement, is that Mustaq Ali got a lease of
the shop in question executed in his favour
in the year 1958. The lease was one for land
meant to be utilized for residential purpose.
He, however, constructed shops over the
leased land. Mustaq Ali had no right to
transfer the shops that he had constructed. If
Mustaq Ali has transferred the shops
constructed by him, that includes the shop in
question, in the plaintiff's favour, defendant
Nos. 1 and 2 are not bound by the said
transfer. Khunni Lal's possession over the
shop in question and raising of a tinshed
worked construction to the north of the said
shop is admitted to defendant Nos.1 and 2.
It is also admitted to the said defendants that
the tinshed worked construction is illegal. It
is the said defendants' case that the suit
property has not been given on rent to
Khunni Lal by them. Defendant Nos.1 and 2
merely realize tehbazari from Khunni Lal.
The suit property is in the use of Khunni Lal,
but it is neither the plaintiff's frontage nor
land appurtenant to it. Since the suit
property is being used by Khunni Lal,
defendant No.2 is entitled to realize
tehbazari from him. He has unauthorizedly
raised constructions on the suit property and,
therefore, defendant Nos.1 and 2 are not
answerable for Khunni Lal's acts. The suit
property was never let out by defendant
No.2 to Khunni Lal nor did they ever
authorize him to raise constructions thereon.
Against Khunni Lal's illegal encroachment
over the suit property, defendant No.2 has
issued a notice under Section 186 read with
Section 221 of the Act of 1916 on
22.07.1981.

14. It is also the case of these
defendants that the suit is undervalued and
court-fee paid insufficient. The suit is also
claimed to be bad for non-joinder. There is
also a plea on behalf of defendant Nos.1 and
2 that the composite notice served under
Section 80 of the Code and Section 326 of
the Act of 1916 is illegal. The plaintiff has
no cause of action and the suit is not
maintainable. The suit is also claimed to be
barred by Section 41 of the Specific Relief
Act, 1963.

15. Khunni Lal, who is defendant
No.3 to the suit and was the sole appellant
before the Lower Appellate Court, died
pending appeal. His heirs and LRs were
brought on record before the Lower
Appellate Court, to wit, Santosh Kumar son
5 All. Smt. Bajifunnisha Vs. Khunni Lal & Ors.
1435
of Khunni Lal, Ram Janki widow of Khunni
Lal and Smt. Rajni Porwal daughter of
Khunni Lal, arrayed as appellant Nos.1/1 to
1/3, in that order. In the present appeal, the
heirs and LRs of the late Khunni Lal are
arrayed as defendant-respondent Nos.1/1,
1/2
and
1/3.
Khunni
Lal's
interest
represented by his heirs and LRs before this
Court arrayed as defendant-respondent
Nos.1/1 to 1/3, shall hereinafter be referred
to as 'defendant No.3' collectively, except
where an individual reference to one of them
or to Khunni Lal becomes imperative in the
context.

16. Defendant No.3 filed a written
statement separately. He accepted the case
that he had taken the shop in question on
lease; that the said shop was transferred by a
sale deed in the plaintiff's favour and on that
basis, she is its owner. According to
defendant No.3, the suit property, where
tinshed worked construction has been raised
by him, is neither in the ownership of the
plaintiff nor subject to any easementary
rights of hers. It is in no way the frontage of
the shop in question. Defendant No.3 had
taken the suit property on a yearly rent from
defendant No.2 and pays that rent. All
construction, that defendant No.3 has raised,
is of a very temporary character. While
undertaking the aforesaid construction,
neither any projection of the plaintiff has
been demolished nor the value of the shop in
question diminished. It is more than 20 years
since constructions were raised on the suit
property. The plaintiff is not in possession of
the suit property or has a right of passage
over it. Instead, possession of the suit
property and right of passage is held by
defendant No.3, albeit by virtue of his
tenancy right. So long as defendant No.3 is
a tenant, the plaintiff has no right of passage
over the shop in question or the suit
property. Also, by putting up a temporary
tinshed worked construction, no obstruction
is laid in gaining access to the road for the
plaintiff.

17. There is also some pleading by
defendant No.3 what this Court might not
only
consider
unnecessary,
but
also
scandalous. Nevertheless, it needs some
reference. It is averred by defendant No.3
that the history of acquisition of the shop in
question, or the land over which the shops
are constructed, is very interesting. The
plaintiff's husband, Abdul Rehman Khan
was a prominent Congress Party leader of
town Kalpi. He remained a member of the
Nagar Palika for a considerable period of
time. During the tenure of his office, using
his influence with the Nagar Palika of which
he was the Vice-Chairman and also the head
of many of its committees as the Chairman,
got the land housing the shop in question
leased to Mustaq Ali, the plaintiff's brother
or so to speak, Abdul Rehman Khan's
brother-in-law. Later on, he made Abdul
Rehman to execute a sale deed in the
plaintiff's favour. The entire proceedings of
lease by the Nagar Palika to Abdul Rehman
and the subsequent sale are all but a sham
and a device to perpetrate fraud. The suit
against the third defendant has been
instituted on unsustainable premises and
ought to be dismissed with special costs
under Section 35-A of the Code.

18. On the pleadings of parties, the
following issues were struck by the Trial
Court (translated into English from Hindi):

"1. Whether the suit is undervalued
and court-fee paid insufficient?
2. Whether the notice issued under Section
80
CPC
and
Section
326
of
the
Municipalities Act is illegal?
3. Whether the plaintiff's suit does not
disclose a cause of action?
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Whether the suit property is the plaintiff's
shop's frontage?
5. Whether the suit property is land
appurtenant to the plaintiff's shop?
6. Whether the sale deed executed by
Mustaq Ali in favour of the plaintiff illegal?
7. Whether the suit is barred by Section 41
of the Specific Relief Act?
8.
Whether
the
plaintiff's
suit
is
maintainable?
9. Whether the plaintiff has a right to move
across from her shop to the National
Highway?
10. Whether the construction raised by
defendant No.3 is illegal and unauthorized?
11. Whether the construction raised by
defendant No.3 is of a permanent character?
If yes, its effect?
12. Whether defendant No.3 is entitled to
costs under Section 35-A CPC?
13. To what relief, if any, is the plaintiff
entitled?"

19. The plaintiff examined in
support of her case, Abdul Rehman as PW1, Noor Ali as PW-2, whereas defendant
No.3, Khunni Lal examined Muzaffar Khan,
the Nazul Clerk with the Nagar Palika as
DW-1, defendant No.3 himself as DW-3/1
and Hari Shanker as DW-3/2. Both sides
produced
a
wealth
of
documentary
evidence, details of which find elaborate
mention in the Trial Court's judgment. It
need not be recapitulated for the sake of
brevity. However, so much of the evidence,
documentary or oral, shall be referred as
relevant at the appropriate stage during the
course of this judgment.

20. In entering its judgment, the
Trial Court held in the plaintiff's favour on
Issues Nos.1, 2 and 3. Issue No.7 was
answered in the plaintiff's favour, because
defendant No.3 did not press it. Issue No.8
was also answered in the plaintiff's favour,
whereas Issue No.6 was answered against
the defendant, holding the sale deed by
Mustaq Ali in the plaintiff's favour to be
valid. Issues Nos.4 and 5 were answered
together, holding in the plaintiff's favour on
both issues to the effect that the suit property
constitutes frontage of the shop in question
and that it was land appurtenant to the said
shop. Issue No.9 was answered by the Trial
Court also in the plaintiff's favour, holding
that the plaintiff was entitled to approach the
P.W.D. Road, both from the northern side of
the shop as well as the southern. Issues
Nos.10 and 11 were answered together.
Issue No.10 was answered in the plaintiff's
favour holding that the construction raised
on the suit property was illegal and
unauthorized, whereas Issue No.11 was
answered in the negative, holding that the
construction standing on the suit property
was temporary in nature. Issues Nos.12 and
13 were also tried together, where Issue
No.13 was answered in the plaintiff's favour
holding that defendant Nos.1 and 2 have not
been able to explain why they permitted the
illegal construction to remain in existence
on the suit property. It was also held that it
would be in the interest of justice to issue
necessary directions to the said defendants.
Issue No.12 was answered against defendant
No.3, holding that he was not entitled to
costs because he had himself committed an
illegality. The suit was held fit to be decreed.

21. The Trial Court decreed the suit
with costs vide judgment and decree dated
22.05.2000, issuing a mandatory injunction
to defendant No.3 to remove the temporary
construction standing on the suit property,
denoted by letters ABJK within a month and
restore the property to its original state. In
default, the Trial Court directed defendant
Nos.1 and 2 upon expiry of the period of
time allowed to defendant No.3 to cause the
constructions standing on the suit property
5 All. Smt. Bajifunnisha Vs. Khunni Lal & Ors.
1437
to be removed, with costs to be borne by
defendant No.3 and cause the suit property
to be restored to its original state.

22. Defendant No.3 appealed to the
District Judge, Jalaun at Orai, where the
appeal was registered as Civil Appeal No.17
of 2000. It was assigned to the Special Judge
(E.C. Act), Jalaun at Orai. The appeal came
on for hearing before the Lower Appellate
Court on 03.11.2007, when it was allowed,
the decree of the Trial Court set aside and
the suit dismissed.

23. The present second appeal was
instituted by the disillusioned plaintiff on
12.02.2008. The appeal remained pending
for a very long time for hearing under Order
XLI Rule 11 of the Code. It was admitted to
hearing as late as on 02.09.2021 on the
following substantial questions of law:

(A) Whether the judgement of the
appellate court complies with Order 41,
Rule 31 C.P.C.?
(B) Whether the lower appellate
court has committed an illegality in exercise
of its jurisdiction in reversing the judgement
and decree passed by the trial court without
meeting out the reasonings given by the trial
court?
(C) Whether the obstruction created
by raising structure over the patri in front of
the
shop
of
the
plaintiff
by
the
defendant/respondent amounts to depriving
the plaintiff of access to the public road and
as such the plaintiff/appellant had the cause
of action and the right to file the suit?

24. Heard Mr. B.N. Agarwal,
learned Counsel for the plaintiff, Mr. S.D.
Kautilya, learned Counsel for defendant
No.3
and
learned
Standing
Counsel
appearing on behalf of defendant No.1. No
one appears on behalf of defendant No.2.
25. It is submitted by Mr. B.N.
Agarwal, learned Counsel for the plaintiff
that the Lower Appellate Court has
committed a manifest error of law while
writing the impugned judgment, inasmuch
as the learned Judge has not set out points
for determination, recording a decision on
each point with reasons relative to the
decision on those points. Mr. Agarwal
submits that not doing so on the Lower
Appellate Court's part is a breach of the
mandatory requirement of Order XLI Rule
31 of the Code. He has pointed out that the
Lower Appellate Court has written findings
of reversal dealing with Issues Nos.4, 5, 8
and 9, framed by the Trial Court, without
framing any points for determination. In
support of his contention, Mr. Agarwal has
placed reliance upon a decision of the
Supreme Court in Malluru Mallappa (dead)
through
Legal
Representatives
v.
Kuruvathappa and others, (2020) 4 SCC
313. Learned Counsel for the plaintiff has
placed further reliance upon the decision of
the Supreme Court in H. Siddiqui (dead) by
LRs v. A. Ramalingam, (2011) 4 SCC 240.

26. Repelling the submissions
advanced by Mr. B.N. Agarwal, the learned
Counsel for defendant No.3, Mr. S.D.
Kautilya, has submitted that Order XLI Rule
31 of the Code does not postulate an
inflexible rule about the necessity of
framing points for determination by the first
Appellate Court, though these invariably
ought to be framed. The submission is that if
the Court of first appeal has substantially
complied with the provisions of Order XLI
Rule 11 of the Code in the sense that the
findings of the Trial Court, necessary for the
decision of the lis, have been discussed, the
evidence appreciated and those findings
reversed for reasons given, the mere absence
of points of determination formally framed,
would not vitiate the first Appellate Court's
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment. Mr. Kautilya has placed reliance
in support of his submissions upon G.
Amalorpavam and others v. R.C. Diocese of
Madurai and others, (2006) 3 SCC 224.

27. This Court is of opinion that
Substantial Questions of Law (A) and (B)
are so inextricably interlinked that both
ought to be dealt with together. The Court,
therefore, proposes to briefly notice the
submissions of parties with reference to
Substantial Question of Law (B) as well,
inasmuch as the submissions hereinbefore
noticed were largely confined to the
necessity
of
framing
points
for
determination.

28.
 As
regards
the
related
Substantial Question of Law (B), Mr.
Agarwal has urged that the Lower Appellate
Court has reversed a well reasoned
judgment passed by the Trial Court without
effectively setting aside the findings of the
Trial Court on fact and law, which it could
not do. It is urged that the Lower Appellate
Court has carved out a third case to the effect
that the plaintiff would become owner of the
suit property if the suit is decreed for
demolition of the temporary structure
standing on the suit property. It is urged that
the said finding is absolutely erroneous,
inasmuch as the pleadings of parties are
about the right to ingress and egress from the
northern side of the shop in question. It is
not at all about a claim by the plaintiff to
ownership or an easementary right over the
suit property. In support of his submissions,
learned Counsel for the plaintiff has placed
reliance upon a decision of the Supreme
Court in Santosh Hazari v. Purushottam
Tiwari (deceased) by LRs, (2001) 3 SCC
179.

29. On this substantial question,
rebutting Mr. Agarwal's submissions, Mr. S.D.
Kautilya, learned Counsel for the third
defendant says, as already noticed, that the
Lower Appellate Court has given detailed
reasons to differ from the Trial Court on all
effective findings necessary to reverse the
Trial Court's decree.

30. Upon hearing learned Counsel for
the parties, this Court is of opinion that the
moot question, so far as Substantial Question
of Law (A) is concerned, is whether the mere
failure to frame points for determination,
without anything more, would vitiate the
judgment of a Court of first appeal. So far as
Substantial Question of Law (B) is concerned,
this Court thinks that it has to be seen from the
tenor of the judgment by the first Appellate
Court, the evidence on record and the findings
of the two Courts below, if the Lower
Appellate Court has effectively reversed the
Trial Court's judgment, setting aside all
relevant findings for good and valid reasons. It
would be well to remember for this Court that
in a second appeal, if the Lower Appellate
Court has considered the findings recorded by
the Trial Court and reversed the same, giving
reasons supported by evidence on record and
the law quite different from the Trial Court's,
it is not the domain of this Court under Section
100 of the Code to interpose our opinion
merely on the ground that the Trial Court's
opinion is more plausible or convincing,
unless the Lower Appellate Court has failed to
give reasons for a finding in disagreement with
the Trial Court, or given reasons that are
perverse, or manifestly illegal, because those
are against the settled position of the law. This
Court has no jurisdiction to interfere with the
Lower Appellate Court's findings, either on
fact or law, reversing the Trial Court, for
reasons that can be plausibly assigned.

31. It is no doubt true that the first
Appellate Court ordinarily ought to frame
points for determination arising in the
5 All. Smt. Bajifunnisha Vs. Khunni Lal & Ors.
1439
appeal, render decision thereon with
reasons, going by the provisions of Order
XLI Rule 31 of the Code, but the mere
failure to frame points of determination
would not lead to the judgment of the first
Appellate Court being vitiated, if otherwise
all effective findings of the Trial Court, on
which the decree is based, are reversed with
reasons assigned that are not perverse or
manifestly illegal; or ones recorded ignoring
material evidence, or still more, placing
reliance on some irrelevant evidence.

32. The insistence of the learned
Counsel for the plaintiff on the necessity to
frame points for determination, which has
not been done in this case by the Lower
Appellate Court, is largely inspired by the
guidance of the Supreme Court in Malluru
Mallappa (supra), where it has been held by
their Lordships:

"13. It is a settled position of law
that an appeal is a continuation of the
proceedings of the original court. Ordinarily,
the
appellate
jurisdiction
involves
a
rehearing on law as well as on fact and is
invoked by an aggrieved person. The first
appeal is a valuable right of the appellant
and therein all questions of fact and law
decided by the trial court are open for
reconsideration.
Therefore,
the
first
appellate court is required to address itself to
all the issues and decide the case by giving
reasons. The court of first appeal must
record its findings only after dealing with all
issues of law as well as fact and with the
evidence, oral as well as documentary, led
by the parties. The judgment of the first
appellate court must display conscious
application of mind and record findings
supported by reasons on all issues and
contentions
[see
:
Santosh
Hazariv.
Purushottam Tiwari [Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179] ,
Madhukar v. Sangram [Madhukar v.
Sangram, (2001) 4 SCC 756] , B.M.
Narayana Gowda v. Shanthamma [B.M.
Narayana Gowda v. Shanthamma, (2011) 15
SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N.
Swami v. Irshad Basith [H.K.N. Swami v.
Irshad Basith, (2005) 10 SCC 243] and Sri
Raja
Lakshmi
Dyeing
Works
v.
Rangaswamy Chettiar [Sri Raja Lakshmi
Dyeing Works v. Rangaswamy Chettiar,
(1980) 4 SCC 259] ].
14. A first appeal under Section 96
CPC is entirely different from a second
appeal under Section 100. Section 100
expressly bars second appeal unless a
question of law is involved in a case and the
question of law so involved is substantial in
nature.
18. It is clear from the above
provisions and the decisions of this Court
that the judgment of the first appellate court
has to set out points for determination,
record the decision thereon and give its own
reasons. Even when the first appellate court
affirms the judgment of the trial court, it is
required to comply with the requirement of
Order 41 Rule 31 and non-observance of this
requirement leads to infirmity in the
judgment of the first appellate court. No
doubt, when the appellate court agrees with
the views of the trial court on evidence, it
need not restate effect of evidence or
reiterate reasons given by the trial court.
Expression of a general agreement with the
reasons given by the trial court would
ordinarily suffice."

 (emphasis by Court)

33. The decision in Malluru
Mallappa arose from a suit for specific
performance of contract. The Trial Court
had held against the plaintiff on issues of
readiness and willingness as also the issue of
limitation, on the foot of which, the suit was
dismissed. The first appeal came up before
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
the High Court, about which, their
Lordships observed that the appeal was
dismissed by a cryptic order without
reappreciating evidence of parties or
recording a reasoned order. There is also a
remark that the case of the plaintiff was that
the suit was well within limitation under
Article 54 of the Schedule to the Limitation
Act, 1963, but that question too was not
examined in the proper perspective. It is in
the background of these facts that the
remarks of their Lordships about adherence
to the requirement of Order XLI Rule 31 of
the Code, including that mandating the first
Appellate Court to frame points of
determination, were made.

34. In H. Siddiqui (supra), the
remarks, on which much reliance has been
placed by the plaintiff, figure in Paragraph
No.21 of the report. These read:

"21. The said provisions provide
guidelines for the appellate court as to how
the court has to proceed and decide the case.
The provisions should be read in such a way
as to require that the various particulars
mentioned therein should be taken into
consideration. Thus, it must be evident from
the judgment of the appellate court that the
court
has
properly
appreciated
the
facts/evidence, applied its mind and decided
the case considering the material on record.
It would amount to substantial compliance
with the said provisions if the appellate
court's judgment is based on the independent
assessment of the relevant evidence on all
important aspects of the matter and the
findings of the appellate court are well
founded and quite convincing. It is
mandatory for the appellate court to
independently assess the evidence of the
parties and consider the relevant points
which arise for adjudication and the bearing
of the evidence on those points. Being the
final court of fact, the first appellate court
must not record mere general expression of
concurrence with the trial court judgment
rather it must give reasons for its decision on
each point independently to that of the trial
court. Thus, the entire evidence must be
considered and discussed in detail. Such
exercise should be done after formulating
the points for consideration in terms of the
said provisions and the court must proceed
in adherence to the requirements of the said
statutory provisions. (Vide Sukhpal Singh v.
Kalyan Singh [AIR 1963 SC 146] ,
Girijanandini Devi v. Bijendra Narain
Choudhary [AIR 1967 SC 1124] , G.
Amalorpavam v. R.C. Diocese of Madurai
[(2006) 3 SCC 224] , Shiv Kumar Sharma v.
Santosh Kumari [(2007) 8 SCC 600] and
Gannmani Anasuya v. Parvatini Amarendra
Chowdhary [(2007) 10 SCC 296 : AIR 2007
SC 2380].)"

35. The appeal before their
Lordships in H. Siddiqui again arose out of
a suit for specific performance of contract,
where the suit agreement had been entered
into on behalf of the defendant by his power
of attorney holder. The agreement was
registered and the plaintiff's case was that
the defendant failed to take necessary steps
in furtherance of the agreement. Amongst
other pleas, the defendant denied the
execution of the power of attorney in favour
of his brother, who entered into the suit
agreement on his behalf. The defendant's
case was that the power of attorney had been
given with a limited authority for the
management of property. It did not authorize
the attorney to alienate. The Trial Court had
held the power to be a valid authority for
alienation in favour of the plaintiff on
ground that the defendant had admitted his
signatures on the power of attorney, when a
copy thereof was shown during crossexamination. The inference drawn by the
5 All. Smt. Bajifunnisha Vs. Khunni Lal & Ors.
1441
Trial Court was that the execution of the
power in favour of his brother being
admitted by the defendant, there was an
admission by him as to the fact of execution
of the document. Their Lordships were of
opinion that the Trial Court could not draw
that inference validly for reason that the
defendant
had
merely
admitted
his
signatures on the photocopy of the power,
but not the contents. It was also observed by
the Supreme Court that the Court should
have borne in mind that the admissibility of
a document is different from its probative
value. It was in the context of these facts that
about the two points of determination
formulated by the High Court, while hearing
an appeal from the original decree, it was
observed in H. Siddiqui:

"20. The High Court failed to realise
that it was deciding the first appeal and that
it had to be decided strictly in adherence
with the provisions contained in Order 41
Rule 31 of the Code of Civil Procedure,
1908 (hereinafter called "CPC") and once
the issue of the alleged power of attorney
was also raised as is evident from Point (a)
formulated by the High Court, the Court
should not have proceeded to Point (b)
without dealing with the relevant issues
involved in the case, particularly, as to
whether the power of attorney had been
executed by the respondent in favour of his
brother enabling him to alienate his share in
the property."

36. It was in the context of remarks in
Paragraph No.20 of the report in H. Siddiqui
that the latter remarks in Paragraph No.21
came to be made. To the understanding of the
Court, it was not meant to be laid down as an
ironcast formula that the formality to frame
points of determination by a Court of first
appeal would always lead to the judgment
being vitiated. Rather, the facts in H. Siddiqui
show that the High Court, sitting as the Court
of first appeal, did frame two points of
determination (a) and (b) and yet failed to
address the vital distinction, amongst others,
on one hand about the scope of the power
given by the defendant to his brother, on the
foot of which he had executed the suit
agreement involved there and the fact of its
execution per se on the other. What, therefore,
really seems to be the law about the necessity
of framing points for determination is that
generally these ought to be framed by a Court
of first appeal, but even if these are not, a Court
of first appeal must be alive to all that is
substantially an issue between parties and
must pronounce on all issues arising between
parties necessary to render judgment. In doing
so, a Court of first appeal must do a
wholesome review of evidence as much as
necessary to vary, affirm, reverse or modify
the findings of the Trial Court. In short, the
Court of first appeal has to undertake a
wholesome review of the case of parties,
examining all evidence on record bearing on
the issue, about which the parties are at
variance. In this connection, reference may be
made to the decision of the Supreme Court in
G. Amalorpavam
(supra),
where
the
substantial question of law involved in the
second appeal before the High Court was
formulated in terms, as noticed by their
Lordships in Paragraph No.3 of the report. It
reads:

"3. At the time of admission of the
second appeal the following question was
framed
for
determination:
"Whether the lower appellate court is
correct in deciding the appeal without any
points for determination as contemplated
under Order 41 Rule 31 CPC?""

37. The issue in G. Amalorpavam
arose before their Lordships in the context
of a suit for possession and recovery of
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
arrears of rent and damages. The suit was
decreed by the Trial Court and affirmed on a
first appeal being carried to the subordinate
Judge from the Munsif's decree. Their
Lordships in the context of the substantial
question of law quoted in Paragraph No.3 of
the report, held on the necessity of framing
points for determination by the Court of first
appeal:

"9. The question whether in a
particular case there has been substantial
compliance with the provisions of Order 41
Rule 31 CPC has to be determined on the
nature of the judgment delivered in each
case. Non-compliance with the provisions
may not vitiate the judgment and make it
wholly void, and may be ignored if there has
been substantial compliance with it and the
second appellate court is in a position to
ascertain the findings of the lower appellate
court. It is no doubt desirable that the
appellate court should comply with all the
requirements of Order 41 Rule 31 CPC.