Court No. - 1 Case :- SECOND APPEAL No. - 1320 of 2009 Petitioner :- Dinesh And Others Respondent :- Smt. Abhiraji Kunwar And Others Petitioner Counsel :- R.D. Tiwari,M.D. Singh 'Shekhar' Respondent Counsel :- A.K. Rai,V.K. Singh Hon'ble Rakesh Sharma,J.
Heard Shri M.D. Singh ‘Shekhar’, learned Senior Counsel for the appellant
and Shri A.K. Rai for the respondents.
Admit.
Let counter affidavit be filed within six weeks. Rejoinder affidavit may be
filed within two weeks thereafter.
List immediately thereafter.
Following substantial questions of law arise for consideration in the present
case.
(1) Whether after framing the issues the trial court was justified in dismissing
the suit by rejecting the plaint under the provisions of Order 7 Rule 11(d)
CPC on the basis of allegations made in the written statement?
(2) Whether the court below was justified in holding that Section 14 of the
Limitation Act would not apply, particularly, in the circumstances where the
appellants were persuading the remedy before the Revenue Court and during
the pendency of the proceedings before the Revenue Court on the legal advice
filed the present suit for cancellation of a sale deed?
(3) Whether the lower Appellate court have a jurisdiction to dismiss the suit
of the plaintiffs-appellants is barred under Section 331 of U.P. Z.A. & L.R.
Act, hence the plaint is liable to be rejected under Order 7 Rule 11 C.P.C. in
spite of the fact that the lower Appellate Court had recorded the finding that
the trial court had decided the issue no.3 and the finding of the trial court is
indefensible on issue no.3?
(4) Whether the lower Appellate Court had exceeded its jurisdiction beyond
the scope of appeal in which the judgment and decree of the trial court on
issue no.3 alone was challenged and there was no adjudication on issue no.4,
even though the lower Appellate Court had decided the same?
(5) Whether the lower Appellate Court had recorded a perverse finding that
the names of the plaintiffs-appellants are not recorded over the revenue record
contrary to the Khatauni 1401 Fasli to 1406 Fasli, which was already on
record in which the names of the plaintiffs-appellants were recorded over the
disputed property?
(6) Whether the court below was justified in deciding the issues no.3 and 4
after framing the issues without any evidence while both the issues relates to
the mixed question of fact and law?
Till then, status quo in respect of the cultivatory possession shall be
maintained by the parties.
Order Date :- 12.1.2010
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