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2009 DIGILAW 1258 (ALL)

SANTOSH KUMAR AGNIHOTRI v. STATE OF U P

2009-04-09

SANJAY MISRA

body2009
SANJAY MISRA, J. Heard Sri D. K. Srivastava learned counsel for the appellant. This is a plaintiffs second appeal against the judgement and decree dated 7. 1. 2009/10. 1. 2009 passed in Civil Appeal No. 118 of 2007 by the Additional District Judge, Court No. 4, Kanpur Dehat whereby the first appellate court had dismissed the appeal of the plaintiff appellant and confirmed the judgement of the Trial Court. Learned counsel for the appellants has submitted that the appellants were given an allotment dated 9. 10. 1992 by the Sub Divisional Officer, Bilhaur on certain area of Gatta no. 64 situate in Gram Chaubepur Kala. He states that the plaintiff appellants were put in possession and they have made their constructions thereupon. According to him when the defendants threatened to forcibly dispossess the plaintiffs the instant suit was filed and the plaintiffs filed the allotment order as paper no. 45-ga. Learned counsel has referred to the said evidence filed as Annexure 1 to the affidavit supporting the stay application to state that it is Akar Patra no. 49-cha dated 2. 10. 1992 wherein the allotment has been made by the Chairman of the Land Management Committee. He therefore states that the courts below have illegally dismissed the suit filed by the plaintiffs by disbelieving the aforesaid documentary evidence as also the oral evidence led by the plaintiffs witness and hence the same are liable to be set aside. It is also his contention that admittedly the plaintiffs are in possession over the allotted land in question by raising their constructions and therefore when possession is found the plaintiffs cannot be ejected forcibly otherwise than by the due process of law. Having considered the submission of learned counsel for the plaintiff appellant and perused the impugned judgements it will be seen that the plaintiff had filed the allotment in the form of paper no. 45-ga whereafter the courts had required the plaintiff to file the other revenue entries of the subsequent years to 1992. The defendants were noticed in the suit but they did not file their written statement and therefore the suit proceeded ex-parte against them. In compliance of the directions of the court below the plaintiff filed the Khatauni paper no. 47-ga and 49-ga. The defendants were noticed in the suit but they did not file their written statement and therefore the suit proceeded ex-parte against them. In compliance of the directions of the court below the plaintiff filed the Khatauni paper no. 47-ga and 49-ga. The courts below found that in the subsequent Khatauni after 1992 the land in question was recorded as Banjar there is construction of Government Seed Store recorded thereupon. The name of the plaintiff was not found in the revenue records after 1992. The courts below therefore recorded that when the land in question is recorded as Banjar and the plaintiff is not recorded in the revenue records the allotment alleged to have been made in his favour in the year 1992 does not appear to entitle the plaintiff to claim to be a valid allottee of the land in question. The courts below found that the plaintiff has to stand on his own legs and having not been able to prove his entitlement to remain on the land in question have dismissed the suit and recorded a concurrent finding of fact on the aforesaid issue relating to entitlement of the plaintiff to a permanent injunction against the defendants. Learned counsel for the appellant apart from referring to paper no. 45-ga which is alleged to be his allotment letter of 1992 has not been able to bring on record any evidence to show that the entries recorded in the Khatauni paper no. 47-ga and 49-ga in favour of the State Government and the Government Seed Store are in any manner incorrect. Since the revenue entry records the land as Banjar and occupied by constructions of Government Seed Store and the plaintiff is not recorded over the land in question in any revenue record even in 1992 or thereafter it cannot be said that the courts below have misinterpreted the documentary evidence filed before it. It was the plaintiffs duty to prove his case regarding his rights over the land in question in accordance with law. Having failed to prove the same the courts below have rightly dismissed his suit. The plaintiff was seeking a permanent injunction against the true owner and the true owner was recorded in the revenue records. Therefore the fact of being in possession unauthorisedly cannot entitle him to be granted a permanent injunction. Having failed to prove the same the courts below have rightly dismissed his suit. The plaintiff was seeking a permanent injunction against the true owner and the true owner was recorded in the revenue records. Therefore the fact of being in possession unauthorisedly cannot entitle him to be granted a permanent injunction. There is also no evidence that the allotment letter was ever given effect to. However the law is settled that even a trespasser cannot be forcibly ejected from the land trespassed by him therefore even if the plaintiff is in unauthorised possession over the land in question the respondents can only evict him by following the procedure duly established by law. There is no cogent evidence on record to indicate that the defendants were evicting the plaintiff unauthorisedly, illegally or forcibly except for vague averments which are not proved. For the aforesaid reasons no interference is required in the impugned judgements, the second appeal does not involve any substantial question of law being concluded by findings of fact based on evidence. The second appeal stands dismissed. No order is passed as to costs. .