IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.389 of 2009 1. Shri Jagadishwar Ghosh, Son of Late Rai Saheb Manoranjan Ghosh, Former President of National Insurance Employees Housing Co-operative Society popularly known as “NATIONAL INSURANCE COLONY”. 2. Sri Shankar Pada Rai, Son of Late Birendra Chandra Roy. Both resident of National Insurance Colony, Bahadurpur Mahatma Gandhi Nagar, patna-26, P.S.- Agam kuan, District- Patna. -----(Defendants-Appellants)-Appellants. Versus 1.Smt. Sushila Roy ,Wife of Sri Kamala Prasad Ray. 2.Kamala Prasad Roy, Son of Late Harihar Roy, Both are resident of Bahadurpur Mahatma Gandhi Nagar(Kankarbagh)East of National Insurance Colony, Patna 20, P.S.- Agam Kuan, District-Patna. 3.Nawal Kishroe Sharma, Son of Late Ram Sanchi Singh, at present resident of Mohalla-Patrakar Nagar, Patna-20, P.S.- Patrakar Nagar, District-Patna. 4.Smt. Kiran Kumari, Wife of Sri Ram Prakash Singh, resident of Village- Eghu, P.S.- Begusarai, District- Begusarai. -----(Plaintiff’s-Respondents Ist Party) -----------------Respondents Ist Party. 5.The National Insurance Employees Housing Cooperative Society popularly known as “NATIONAL INSURANCE COLONY” situate at Bahadurpur Mahatma Gandhi Nagar, Patna-20,P.S.- Agam Kuan, District-Patna through its Secretary Sri Bhola Prasad Sinha. 2 6.Sri Umakant Rajan Singh, Son of Not known, at present resident of National Insurance Colony, Bahadurpur, Mahatma Gandhi Nagar, Patna-20. ----------(Defendants-Respondents 2nd Party) --------Respondents 2nd Party. ----------- 07. 29.09.2011 Heard the learned senior counsel appearing on behalf of the appellant in support of this appeal. This appeal has been filed against the judgment and decree dated 14.07.2009 passed by the Additional District Judge, F.T.C.V, Patna in Title Appeal No.19/2002 affirming the judgment and decree dated 19.12.2001 passed by Munsif, Patna City in Title Suit No.43/1996. The suit has been filed for declaration of the easementary right of the plaintiffs over a passage described fully in Schedule A of the plaint and further for mandatory injunction for removing the obstruction of wall in the said passage by the defendants. The case of the plaintiff, in short, is that the passage described in Schedule A is used by the plaintiffs and before their purchase by their vendors from time immemorial and they have acquired an easementary right over the same for use of the said passage for coming in and going out of their houses. The disputed passage has been described fully in the 3 plaint by indicating the same by point “A to B” in the Schedule. The defendants appeared and contested the claim of the plaintiffs by asserting that the passage in question belongs to National Insurance Employees Housing Cooperative Society (defendant no.1) and is being used exclusively by its members. From the perusal of the trial court judgment, it appears that after filing of the written statement, the defendants left pairvi in the suit and ultimately the matter was taken for hearing in absence of defendants. There was no evidence either oral or documentary on behalf of the defendants in support of their contentions raised in the written statement. However the plaintiffs adduced oral and documentary evidence and after considering the same, the trial court has come to the conclusion that the plaintiffs have succeeded in establishing their easementary right to use the disputed passage as described in Schedule of the plaint and directed the defendants to remove the obstruction raised by them over the said passage. It is the case of the defendants in their written statement that the disputed passage alongwith surrounding 4 land belongs to the National Insurance Employees Housing Cooperative Society (defendant no.1). But the said Cooperative Society did not prefer an appeal against the judgment and decree of the trial court rather another defendant claiming himself to be the former president of the Cooperative Society alognwith one more defendant filed the appeal. The appellate court in paragraph 11 of its judgment took notice of the fact that the Cooperative Society (defendant no.1) had not shown any grievance against the declaration of the easementary right of the plaintiffs by the trial court and has not filed the appeal against the judgment and decree in favour of the plaintiff. Thereafter the appellate court proceeded to examine the evidence and submissions of the plaintiff’s alongwith the pleading made by the defendants in their written statement and has concurred with the findings of the trial court that the plaintiffs have acquired the easementary right over the disputed passage as claimed by them. The learned senior counsel appearing on behalf of the appellants has firstly submitted that the Cooperative Society has been superseded and therefore its members including its former president can maintain the appeal. He has 5 further submitted that the appellate court judgment cannot be sustained in law in view of its failure to formulate points for determination in the judgment in accordance with Order 41, Rule 11 C.P.C. From the perusal of the judgments of both the courts below, it does not appear that there is any averment or any evidence on record to establish that the Cooperative Society has been superseded. In this appeal, no such ground has been raised in the memo. In absence of any pleading or evidence on record it is difficult to accept the submission of the learned senior counsel for the appellants that Cooperative Society (defendant no.1) has been superseded. Further it is admitted position that the defendants after filing of their written statement did not lead any oral or documentary evidence and tool part in the hearing of the suit. The trial court framed the issues on the basis of the pleadings of the parties and has passed the judgment on the basis of the evidence led by the plaintiff alone. The appellate court has addressed to all the relevant issues arising for determination after reappraising materials on record and has confirmed the judgment of the trial court. In such a circumstance, the failure to state the points for determination in its judgment by the 6 appellate court cannot be taken to be momentous requiring interference. A well considered judgment of affirmance by the first appellate court cannot be set aside on the basis of an irregularity not going to the root of the matter. Nothing could be shown on behalf of the appellants as to how the non- formulation of points by the appellate court has caused prejudice to the appellants. The conduct of the appellants in both the courts below reveals an indifferent attitude adopted by them and therefore, the submission of the learned counsel for grant of equitable relief does not appear to be tenable. For the foregoing reasons, I do not find any merit in this appeal and there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh (V.Nath, J.)