Hari Nath Tilhari, J.@mdashThis Defendant�s second appeal arises out of judgment and deceee dated 11-4-1979 passed by District Judge. Ghaziabad, in Regular Civil Appeal No. 14 of 79 Bulbir Singh and Anr. v. Kiran Singh and Ors. allowing the Plaintiffs� appeal and decreeing the Plaintiffs� suit for permanent injunction restraining the Defendants from interfering in Plaintiffs� possession and cultivation over khasra plot No. 832 area 2 bigha 2 biswas situate in village Mahrauli, Pergana Dasna, Tehsil and district Ghaziabad after having setting aside the decree of the trial court whereby the trial court had dismissed the Plaintiffs� suit The facts of the case in brief are that the Plaintiff-Respondents filed a suit for permanent injunction restraining the Defendants from interfering with the Plaintiffs� possession over the suit land specifically described in the plaint The Plaintiffs� case as per plaint dated 10-4-78 has been that by virtue of agreement to sell the bhumidhari land, namely, bhumidharl plot No. 832 referred to above, was executed by Jaybir Singh in favour of Plaintiffs on 19-5-76 wherein it was provided that within a period of three years from the date of agreement Jaybir Singh will execute the sale deed in favour of the Plaintiffs i.e. by or before 18-5-79 the Plaintiffs are in possession of the said plot, as according to the plaint allegations Jaybir Singh is alleged to have delivered possession of the land in question to the Plaintiffs after having received Rs. 15,200/- as advance or earnest money towards sale consideration which was agreed upon to be Rs. 25,200/- and agreed that the balance of Rs. 10,000/-shall be paid by the Plaintiffs to Jaybir Singh at the time of execution of the sale deed. It was further alleged in the plaint that the Plaintiffs were in possession and the wheat crop belonging to the Plaintiffs was standing on the said land and that the Defendants had no right or concern with the property in dispute. It was further asserted that the Defendants warned to cut the wheat crop belonging to the Plaintiffs and wanted to interfere with the possession of the Plaintiffs over the property in dispute; so the suit. Amongst the reliefs claimed in the relief clause of the plaint, in particular the relief for the decree for permanent injunction as mentioned above has been claimed
2. The suit was contested by the Defendant-Appellants. The Defendants in their written statement had asserted and had stated that the Defendants had purchased the property in dispute for a sale consideration of Rs. 16,000/- from Jaybir Singh vide registered sale deed dated 3-4-78. The Defendants denied the possession of the Plaintiff Respondents over the suit land it was further asserted that the crop standing over the land in dispute was not belonging to the Plaintiffs but belonged to the Defendants. The trial court framed the following issues:
1. Whether the Plaintiffs are in possession over the land in suit by virtue of agreement to sell dated 19-5-76 executed by Jaybir Singh in favour of the Plaintiffs?
2. Whether Defendants were in possession over the land in suit by virtue of sale deed dated 3-4-78 executed by Jaybir Singh in their favour?
3. Whether the wheat crop standing on the plot in suit was sown by the Plaintiffs or Defendants?
4. Whether the civil court has got jurisdiction to grant the relief of injunction as claimed by the Plaintiff?
5. To what relief, if any, are the Plaintiffs entitled?
3. The trial court recorded the findings that the Plaintiffs are in possession of the suit land on the basis of agreement to sell and the agreement is not old against the, Defendants as in the written statement the Defendants have not stated that they had no know ledge of the said agreement. The trial court further recorded the finding that as the land in dispute is agricultural land the proper remedy for the Plaintiffs was to file the suit for declaration and not injunction. With these findings the trial court i.e. II Additional Munsif, Ghaziabad by his judgment and decree dated 6-12-78 dismissed the Plaintiffs� suit with costs.
4. Feeling aggrieved from the judgment and decree of the trial court, whereby the trial court had dismissed the Plaintiffs� suit, the Plaintiffs filed first appeal i.e. Regular Civil Appeal No. 14 of 1979. The learned lower appellate court set aside the trial court''s decree of dismissal of the suit. The learned lower appellate court held:
What I want to stress is that Kiran Singh Defendant No. 1 as DW 1 did not say a single word as to why the original sale deed could not be filed by the Defendants. Under the circumstances, the certified copy of the said sale deed dated 3-4-78 is not admissible in evidence. No attempt at all has been made by the Defendants to prove the execution of the said sale deed by Jaybir Singh in favour of the Defendants.
5. The learned lower appellate court referred to the evidence of Jaybir Singh and said that as so called vendor has denied the execution of the sale deed in favour of Defendants and the Defendants have not tried to produce the scribe or the marginal witnesses of the deed to show that in fact Jaybir Singh did execute the said sale deed in their favour and was simply denying that, in collusion with the Plaintiffs. The learned lower appellate court further held as under:
I, therefore, hold that Jaybir Singh, PW 4, never executed any sale deed In favour of the Defendants with respect to the plot In suit. He never delivered possession over the same to the Defendants.
6. He further held that in view of statement of PW 4, Jaybir Singh admitted the execution of the agreement dated 19-5-76 with respect to the plot in suit in favour of the Plaintiffs for a consideration of Rs. 25,200/- and has further admitted the taking of advance or earnest money etc, including the delivery of possession of suit property to Plaintiffs; so the Plaintiffs� case according to the lower appellate court stood proved and the Plaintiffs bad right to maintain suit in Civil Court for injunction on the basis of possession alone. With these findings the learned lower appellate court allowed the appeal and decreed the suit.
7. Feeling aggrieved from the judgment and decree of the lower appellate court allowing the Plaintiffs appeal and decreeing the Plaintiffs suit for permanent injunction against the Defendants the Defendants have come up in second appeal u/s 100 of the Code of Civil Procedure.
8. I have heard Shri Rajesh Ji Verma assisted by Sri Santosh Kumar, Advocate on behalf of Defendant-Appellants as well as Shri B.D. Tripathi, learned Counsel for the Plaintiff Respondents Shri Verma has contended before me that the decree of the lover appellate court suffers from substantial error of law and of jurisdiction Shri Verma further submitted that It is well settled principle of law that possession is hundred percent title against the entire world except the true owner He further submitted that by a registered sale dead dated 3-4-78 the Appellants had purchased the property in dispute for valuable consideration from Jaybir Singh and acquired title and interest which Jaybir Singh had in the land In dispute and as the title and interest of Jaybir Singh passed on to Appellants by virtue of the registered sale deed dated 3-4-78 the Plaintiff-Respondents were not entitled to get any injunction against him Shri Verma further contended that the learned court below firstly ought to have decided on the basis of uncontroverted allegations made by the Defendants in paragraph 19 of the written statement whereunder the Defendants claimed and asserted their title to the property on the basis of a registered sale deed dated 3-4-78 which allegations were not denied by pleadings or by filing additional written statement or replication or even by statement under Order 10 Rule 3 of the Code nor has any amendment been sought in the plaint to deny those allegations. He further submitted that when Defendants� case was not denied, the learned court below ought to have taken the same as an admitted case or in any case the learned lower appellate court ought to have considered the question of title. Firstly the trial court ought to have framed an issue on the question whether Jaybir Singh transferred the property in dispute in favour of the Defendant-Appellants by having executed the registered sale deed dated 3-4-78." The trial court cot having framed the Issue, the Defendant-Appellants had no opportunity to produce oral evidence though certified copy of the sale deed has been filed but as there was no issue the Defendant-Appellants did not realise the necessity to produce any farther evidence taking that his case was admitted one, and on this issue there was no finding. The learned lower appellate court while deciding the appeal framed certain points as mentioned, in the course of dictation of judgment, and observed the following points arise for determination. The said points have been quoted at page 3 of the certified copy of the lower appellate Court''s judgment attached with the memo of appeal. The learned lower appellate court ought to have either given Defendant-Appellants an opportunity to produce the evidence to prove the transaction of sale or it ought to have sent the points for finding to the trial court or should have remanded the case for trial on merits keeping in view the provisions of Order 41 Rule 13 of the CPC read with Rule 23A of the Code Shri Rajesh Ji Verma learned Counsel further submitted that in this way the decree passed by the lower appellate court seriously suffer from substantial error of law. Shri Verma the learned Counsel for Appellants further submitted that apart from that the learned lower appellate court committed substantial error of law in holding that the certified copy of the sale deed dated 3-4-78 was inadmissible which sale deed has been filed by Defendant-Appellants in the trial court While holding the sale deed to be inadmissible the learned lower appellate court ignored the material provisions of Indian Evidence Act, in particular, Section 65(e) & (f) and Sections 74 end 75 thereof. Shri Rajesh Ji Verma submitted that in case there would have been specific pleading by the Plaintiff-Respondents and the Plaintiff Respondents would have pressed the issue specifically the Defendant-Appellants would not have escaped the opportunity of producing the relevant evidence to prove the transaction itself but due to failure on the part of the courts below to apply their mind to the question and to frame the relevant material issue the Defendant-Appellants were deprived of the opportunity to produce evidence on that point,
9. Thus, according to the learned Counsel for the Defendant-Appellants the appellate court''s decision suffers from substantial error of law consisting of ignoring the certified copy of the sale deed dated 3-4-78 on a ground not warranted by law and failure on the part of she courts below to frame necessary and proper issues in the matter Shri Verma, learned Counsel and Appellants further argued that even the agreement to sell relied upon by the Plaintiffs dated 19-5-76 the findings recorded by the court below in respect thereof has been vitiated by substantial error of law as the learned trial court as well as the learned lower appellate court did not apply their mind to the Plaintiffs� own evidence namely, Ved Pal who had stated:
MAIN NAHIN FAHCHANTA Kl IKRARNAMA YAHI HAI...MAIN ANGERH NAHIN JANTA ISLIYA JAIBIR AUR TElPAL KE DASTKHAT NAHIN PAHCHANTA.
and who had further stated:
IS SAMAY KHASRA No. 832 PAR KISKA KABJA HAI MUJHE NAHIN MALOOM.
So the learned Counsel contended that the decision of the court below is vitiated by error of law and he submitted that the appeal deserved to be allowed Shri Verma, learned Counsel for Defendant-Appellants further submitted that Plaintiff-Respondents had no title to file the suit because no sale deed have been executed in favour of the Plaintiff-Respondents in pursuance of the alleged agreement to sell Gated 19-5-76. Learned Counsel for the Appellants tried to refer the decision in subsequent suit tiled by Jaybir Singh for cancellation of sale deed dated 3-4-78 which he alleged to have been dismissed and appeal therefrom had been dismissed. So his contention was that Plaintiff Respondents had not filed any agreement to sell, even if as an alternative it is accepted to have been proved the agreement itself would not entitled the Plaintiff to get a decree for injunction against the Defendant Appellants and the Plaintiff is not entitled to get injunction against a person in possession and his contention further is. that the Defendants-Appellants on the basis of sale deed dated 3-4-78 had acquired title and that the suit for injunction was illegally decreed and the decree passed by the court below i.e. lower appellate court suffers from substantial error of law and jurisdiction Learned Counsel for the Plaintiff-Respondents Shri B.D. Tripathi disputed and challenged these contentions of the learned Counsel for the Defendant-Appellants. Shri Tripathi contended that firstly the finding regarding possession has been recorded in their favour by the to courts below and that finding is concurrent finding of fact and their possession has been hundred per cent a title or possessor title any particularly when the Defendant-Appellants was not proved to be entitled and the finding has been recorded by the court below was final against the Defendant-Appellants, Shri Tripathi further contended that even if no sale deed had ken executed in farour of the Plaintiff-Respondents but as there was agreement to sell and as a good sum was paid towards part payment of the sale consideration by the Plaintiff-Respondents to Jaybir Singh and Jaybir Singh delivered possession of the land in dispute the Plaintiffs were entitled to file the suit and to get the decree for injunction in particular in view of the provisions of Section 164 of the U.P. Zamidari Abolition and Land be forms Act Shri Tripathi further contended that as the possession of the property had been handed over to the Plaintiff-Respondents by the vendor Jaybir Singh the property had been transferred to them so the transfer of land coupled with agreement to sell resulted in nothing but transfer of ownership as the said transaction amounted to sale u/s 164 of the II P. Zamindari abolition and Land Reforms Act and so his contention is that the learned lower appellate court did not commit any error of law muchless a substantial error of law in allowing the Plaintiff-Respondents'' appeal and in decreeing the Plaintiffs� suit at the appellate stage. He further submitted that she appeal is concluded by pure findings of fact on the question of agreement and question of possession of Plaintiffs and so the second appeal Is liable to be dismissed.
10. I have given my due consideration to the contentions of the learned Counsel for the Appellants and Respondents Before I proceed to examine it. It will be just and proper on my part to refer to the provisions of Section 100 in particular Sub-section (1) thereof, of the Code of Civil Procedure:
100 Second Appeal--(1) Save as otherwise expressly provided in the body of this Coda or by any other law for the time being enforce an appeal shall lie to the High Court from every decree passed in appeal by any Court Subordinate to the High Court, if the High Court Ss satisfied that the case involves a substantial question of law.
11. The second appeal lies to the High Court on substantial question of law i.e. in oases which involve substantial question of law. The question of law is substantial if a decision thereon has got tendency of effecting the decision in appeal one way or the other in
Their Lordships thick It Is quite clear, and indeed it was conceded by Mr. De Gruyther, that that is not the meaning hut that the words "substantial question of law" mean a substantial question of law as between the parties in the case involved.
Their Lordships in this case pointed out the distinction between the expression "substantial question of law" of general importance" on one hand and "substantial question of law" and in that context Their Lordships have Indicated that expression ''substantial question of law as has been used in Section 100 of the Code it means and refers to, according to their Lordships substantial question of law as between the parties in the case i.e. question of law if of substantial nature that is its decision substantially affects toe decision on merits of the case one way or the other and not a sheer technical question of law. This case was followed with approval by the Supreme Court in the case of
In
The proper test for determining whether a question of law raised in a case is substantial would in our opinion, be whether ft is of general importance, or whether it directly or substautially effects the rights of the patties and if so whether it is either an open question in the sense that it is not finally settled by this Court of by Privy Council or by Federal Court and is not free from difficulty or calls for discussion of alternative views." Their Lordships laid emphasis on substantial nature of question of law or its application directly and substantially effecting the rights of parties of case
12. Their Lordships further observed in Pankaj Bhargava case (supra) as below:
The proposition that reciprocal promises are sufficient to bring about the formation of a contract is well settled and Indeed elementary. But the High Court does not appear to have been invited to examine the question whether this proposition in its application to the case assumed substantial character as between the parties. The appeal did involve a question of law. The question DIREC directly and_substantially rights of the_parties. It is possible to assume that High Court considered the question a substantial one between, the parties we do not think that it would be appropriate to fault on this ground though point might well have been eminently arguable one if it had been raised before the High Courts In any event in the view we take of the second contention this point loses its materiality" Considering In this context when I examine the arguments of the learned Counsel for the parties 1 find that the decision suffers from substantial error of law as Indicated hereinafter. It is a well settled principle that the trial of a case or decision of a case should be on the basis of the points in dispute and If a pleading has not been denied it is to be taken to be admitted, but even if the pleading is admitted or otherwise agreed, the court may put a party to prove that fact otherwise than by admission Implied or expressed, u/s 58 of the Evidence Act There could be no denial about the same but then it is discretion of the court, then the court has to exercise its discretion rationally and judiciously and require the parties to prove the facts admitted by the evidence otherwise than admission because it cast a duty on the court which requires certain fact which is admitted by implication to be proved otherwise than by admission by the parties that the court should first frame a specific point and then provide parties concerned an opportunity to produce relevant evidence thereon and it Is not like that while deciding the appeal the court is to frame the points for determination and record its finding on that point without giving an opportunity to the party concerned to lead evidence on that point. When the lower appellate court had framed point No. 2 it firstly ought to have divided the same into two, namely:
(a) Whether Jaybir Singh executed the sale deed dated 3-4-78 in favour of the Defendant-Appellants?
(b) Whether Jaybir Singh delivered possession of the plot in dispute while executing the sale deed in favour of the Appellants?
13. No doubt, the learned lower appellate court made one point for determination while drafting its judgment but it did not take into account the fact that no such issue was framed or pressed on the subject matter of sale deed which deed was in favour of Defendant-Appellants and on the basis of which the Defendant-Appellants claimed their title which sale deed had not been denied by the Plaintiff-Respondents by way of replication or amendment in the plaint and did not consider the fact that the Defendant-Appellants did not have the opportunity to lead evidence. This indicates that the decision of the case was vitiated by substantial error of law and procedure on account of the failure of the Plaintiffs to deny the Defendant�s case about the title as well as failure of the lower i.e. trial and appellate court to frame the necessary relevant issue thereon and failure of the lower appellate court to provide Defendant-Appellants an opportunity to leade evidence to prove the sale deed. This has resulted in mistrial of the claim and the dispute involved in the suit.
14. Apart from this the lower appellate court has further committed substantial error of law while allowing the first appeal and decreeing the Plaintiffs� suit by completely ignoring the sale deed dated 3-4-78 the certified copy of which had been filed by the Defendant-Appellants. Learned lower appellate court also committed a substantial error of law in taking the view that as the Defendant-Appellants had not stated a single word as to why the original sale deed was not fried by the Defendant-Appellants, the certified copy of the said rale deed dated 3-4-78 was inadmissible in evidence. Section 65 of the Indian Evidence Act provides in what cases and circumstances the secondary evidence relating to the documents may be given. Relevant part of the Section 65 reads as under:
(a)...
(b)...
(c)...
(d)...
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence
15. Section 74 of the Indian Evidence Act defines public documents Section 74 of the Act reads as under:
74. The fallowing documents are public documents:
(1) documents forming the acts or records of the acts
(I) of the sovereign authority,
(II) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive (of any part of India or of (he Common wealth), or of a foreign country;
(2) public records kept In (any State) of private documents
Sub-section (2) of Section 74 of the Act provides that public record as kept in the state of private documents is also a public document The record of the sale deed registered before the Registrar is itself a public record where in the record of the private documents is Kept by the State and the State authority Section 76 of the Evidence Act provides for the issuance of certified copies of the public documents and Section 77 of the Act provides that such certified copies may be produced in proof of the contents of public documents purported to fee copies. Section 77 of the Act reads as under:
77. Such certified copies may be produced to proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
16. Thus considered the certified copy issued by the Office of Registrar, of the private documents, from Public record of private documents kept therein in which is kept and maintained by the Sub Registrar''s Office is a secondary piece of evidence and In view of the provisions of Section 68 (e) and (f) of the Act the same is admissible in evidence in order to prove the contents of documents u/s 65 sub Clauses (e) and (f) thereof In this view of the matter, 1 am of the opinion that the learned lower appellate court committed substantial error of law in holding that the certified copy of the sale deed dated 3-4-78 was inadmissible in evidence as the Defendants have not said a single word explaining the reason why original was not produced There was no need to explain the circumstances in which original was not produced because It is covered by Section 65 (e) and (f) and there is no such requirement, Clauses (a), (b) and (c) stand independently of each other. Section 65 of the act explains the circumstances. In any case the circumstances mentioned in Clauses (a) to (g) the secondary evidence can be produced It is not necessary that if a case is covered by Clause (e) and (f) the person who wants to produce the secondary evidence should explain about ''the original while filing the certified copy of the public document, or of a document of which certified is permitted under this Act i.e. in case covered by Clauses (a) and (f) then nothing farther is required to be explained In this new of the matter I am of the opinion that the learned lower appellate court committed substantial error of law in rejecting the certified copy of the sale deed as inadmissible. In any case it should have made enquiry from the Defendants, they could have explained. The learned court below could have given an opportunity to the Defendants to summon the original if it was filed in some court or it could have been produced. Thus the finding of the court below that, Jaybir Singh never executed the sale deed in favour of the Defendant-Appellants is vitiated by substantial error of law. The learned Counsel for the Appellants had tiled an application under Order 41 Rule 27 of the Code for the purposes of bringing on the record of this case the certified copies of the plaint, written statement and the depositions of the witnesses as well as of the judgment of the trial court and of the appellate court in R.S. No. 64 of 79 i.e. suit filed by Jaybir Singh for cancellation of the sale deed dated 3-4-78 and which has been dismissed. Learned Counsel for the Respondents has in this connection submitted that his client was not a party to that suit The Respondents might not have been a party to that suit but the Plaintiff-Respondents are claiming title through Jaybir Singh then that decision would be binding upon them as well as it was binding on Jaybir Singh himself. Any way, in my opinion and I feel that the trial and decision of case had suffered materially on account of failure of courts below to bring on record the sale deed and give opportunity to the Defendants to lead evidence. It Is also failure en the part of the learned appellate court not to have called upon or given opportunity to Appellants to produce evidence oral or documentary on point No. 2 framed by It: and which read as below:
Whether Defendants were in possession of plots in suit by virtue of sale deed dated 3 -4-78 executed by Jaybir Singh in their favour? and which really consists of two issues referred to above.
Thus considered the judgment and decree suffer from substantial error of law.
17. The case is required to be remanded for framing proper issues and giving parties opportunity to lead evidence In respect thereof In such circumstances in order to enable the court to decide the material question involved as indicated above as well hereafter, it would be in the interest of Justice to allow the Appellants application for filing additional evidence moved under Order 41 Rules 27 of the CPC and so the same is bung allowed as the laid documents Including judgment delivered in aforesaid case came into existence during the pendency of second appeal in the court and have got relevance and are admissible for the purpose.
18. The contention of the learned Counsel for the Respondent Shri B.D. Tripathi based on Section 164 of U.P. Zamindari Abolition & Land Reforms Act and its interpretation to the effect the agreement to sell is sale by itself in view of Section 164 of U.P. Zamindari Abolition & Land Reforms Act is without substance. The scheme of Section 164 of U.P. Zamindari Abolition & Land Reforms Act is control all transfers and to make them subject to provisions of Section 164 Section 164 of the U.P. Zamindari Abolition & Land Reforms Act so far Is concerned applies to transfer of property i.e. entire or part of the holdings made for the purpose of securing the payment of money advanced or to he advanced by way of loan or for existing or future debts or to almost to control transfers of the holdings made for the purpose of securing the performance of engagement which may give rise to a pecuniary liability - From the language of Section 164 it is very clear that it does not cover the cases where a transaction Is of the nature, as agreement to sell. When I so hold 1 find support from a decision reported in Mohammad Fasih v. Munir Khan 1987 ADJ 617 and Brahma v. Board of Revenue U.P. All 1985 RD 292. Learned Counsel for the Respondents in this context made a reference to the decision of Thakur Das v. Deputy Director of Consolidation Jhansi 1986 RD 35. In this connection, this Court had Interpreted Section 164 of U.P. Zamindari Abolition & Land Reforms Act and the learned Single Judge has taken the view that where a bhumidrar transfers the possession of land with a view to secure payment of money advanced or transactions giving rise to a pecuniary liability the transaction would be deemed to be a transaction of sale in view of Section 164 and not a mortgage.
19. Justice B.L. Yadav in this case has observed as under:
The legislature has enacted Section 164 with a view that in case a Bhumidhar has obtained some payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, in that event if possession is transferred by Bhumidhar to the transferee as satisfaction of that loan, that would amount to a sale.
After having referred to the case of Hira Lal v. Deputy Director of Consolidation Allahabad & others Justice B.L. Yadav further observed:
Similarly in the instant case also the father of the Petitioner who was a Bhumidhar having obtanied loan twice transferred possession of land to Respondents 4 and 5 to secure payment of money advanced. Hence the transaction became a sale.
Thus considered the case relied by learned Counsel for the Respondents has no application to the facts of the instant case and is of no help to Respondents whose claim is based on alleged agreement to sell relied by Plaintiffs.
20. It appears just and proper to me to remand the case to lower appellate court to reframe and divide then point No. 2 enumerated in the lower appellate court''s judgment which rends as under:
Whether Defendants were in possession of plot in suit by virtue of sale deed dated 3-4-78 executed by Jaybir Singh in their favour?, after dividing into two parts as below.
21. If this point as framed is taken to be correct there would be only one point in dispute about the delivery of possession in favour of Defendant-Appellants on the basis of sale deed dated 3-4-78 and the execution of the sale deed dated 3-4-78 is to be taken as an admitted fact while the learned Counsel for the Respondents contended that that was not an admitted fact that the sale deed dated 3-4-78 was executed by Jaybir Singh, as such, the said point be divided info two:
(a) Whether Jaybir Singh executed the sale deed dated 3-4-78 in favour of Defendant-Appellants as alleged in paragraph 19 of the the written statement?
(b) Whether Jaybir Singh delivered possession of the land in favour of Defendant-Appellants as alleged?
22. If the findings on issue Nos. a and b as framed by me is in favout of the Defendants then whether the Plaintiffs are entitled to claim injunction against the Defendants on the basis of simply alleged agreement of sale dated 19-5-76 will also have to be replied.
23. Thus considered the second appeal Is allowed and the judgment and decree passed by the learned lower appellate court is set aside and the case is remanded to the learned lower appellate court with the direction to decide the first appeal afresh as well as to decide the issues referred to above by me above after providing the opportunity to parties to lead evidence on that point keeping in view the observations made by me above and relevant law.
24. Let (he documents filed by the Defendant-Appellants in this Court under Order 41 Rule 27 of the CPC which I do allow to he taken on record and should be sent along with the record to the lower appellate court and if the Appellants want to file any further evidence it should be allowed and the Plaintiff Respondents shall also be allowed to file any further evidence in respect of these points in issue which have been framed by me as well as in rebuttal of those documents that have been filed in this Court and have been taken on record under this order under Order 41 Rule 27 of the Code.
25. The appeal is allowed and disposed of accordingly and cost of the appeal is made easy.
