JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Sri R.N. Singh, learned Senior Counsel, assisted by Sri Ajit Kumar Singh, learned counsel for the Appellant-Kanpur Development Authority and Sri Ashwani Kumar Misra, learned counsel appearing for the plaintiff-respondent, Shyama Swasthya Kendra, a Registered Charitable Society. 2. Through this Second Appeal, the Appellant, Kanpur Development Authority (hereinafter referred to as the KDA) has sought to challenge the judgment dated 9.5.2001 and decree dated 28.5.2001, rendered by the Additional District Judge, Kanpur Nagar, arising out of judgment dated 7.5.1993 and the decree dated 17.5.1993, passed by the 1st Additional Civil Judge, Kanpur. The Trial Court and the Lower Appellate Court have recorded concurrent findings of fact in decreeing the Suit filed by the plaintiff-respondent and dismissing the First Appeal preferred by the KDA. 3. It emerges from the record that the plaintiff-respondent, Shyama Swasthya Kendra, a Registered Society through its Secretary Shashi Nath Thakkar, had filed a Suit No. 152 of 1990 in the Court of Civil Judge, Kanpur Nagar, against the KDA for a decree of permanent prohibitory injunction restraining KDA and its Officers from demolishing any part of the premises owned by the Society. It was further prayed that the Authorities of the KDA should not cause any interference in the peaceful possession and enjoyment of the property owned by the plaintiff-Society. The 1st Additional Civil Judge, Kanpur, vide judgment dated 7.5.1997, passed under Order VIII, Rule 10, CPC, had decreed the Suit of the plaintiff-respondent. The Defendant, KDA and its officers were restrained by means of permanent injunction from demolishing any part of the constructions standing over the plot Nos. 1874 and 1896 in Panaki-Gangaganj area of Kanpur Nagar. The KDA feeling aggrieved by the aforesaid judgment and decree had filed a time barred First Appeal before the Lower Appellate Court alongwith an application under Section 5 of the Limitation Act in September, 1993. This First Appeal was heard and was dismissed by the Lower Appellate Court, that is, VIII Additional District Judge, Kanpur Nagar vide judgment and decree dated 2.5.2001 and 28.5.2001. 4. The KDA had presented this time barred Second Appeal in this Court. The delay was condoned and the mater has come up for hearing. The area of the land in dispute is about 4 Bigha 12 Biswa. 4. The KDA had presented this time barred Second Appeal in this Court. The delay was condoned and the mater has come up for hearing. The area of the land in dispute is about 4 Bigha 12 Biswa. The area adjacent to the plots in dispute had already been acquired by the KDA under the provisions of Kanpur Urban Area Development Act by issuing notification under Section 53 of the said Act in the Uttar Pradesh Gazette dated 8th July and 25th July, 1959. Another notification was issued under Section 60 of 23rd December, 1959. The land acquisition award was issued on 30th May, 1966. 5. According to the KDA, the compensation in regard to the plots in dispute was given to the persons who were related to the land in dispute. As per the version of the KDA, the possession of the plots in question was taken on 24.6.1966. 6. Initially at the stage of Trial Court, Lower Appellate Court and during pedency of this Second Appeal in this Court since the year 2005, no documents were filed by the KDA in support of its pleadings. For the first time in compliance of various orders passed by this Court, the KDA made endeavour to find out some relevant documents and accordingly an affidavit has been filed on 14.3.2010. The copies of the alleged award No. 58, dated 30.5.1966 in case No. 24/59-60 has been filed. In addition to it, a map of land, land acquisition form certified by the Tehsildar of the KDA and an inspection report dated 10th March, 2010 have also been filed. 7. Sri R.N Singh, learned Senior Counsel appearing for the Appellant-KDA, has strenuously argued that the Plot Nos. 1874 and 1896, which the plaintiff-respondent is claiming to be its property is based on so-called Izazatnama. This Izazatnama alleged to have been executed by the erstwhile Zamindar of the area, Smt. Vijaya Rani Kunwar. This Izazatnama is not a legal and valid document. The above plots have already been acquired under the provisions of the Kanpur Area Urban Development Act, 1959 by issuing appropriate and valid notifications. As per the award dated 30.5.1966, the possession had already been taken. The plaintiff-respondent had already been given compensation for the land acquired. According to him, the possession was taken from the land owners on 24th June, 1966. As per the award dated 30.5.1966, the possession had already been taken. The plaintiff-respondent had already been given compensation for the land acquired. According to him, the possession was taken from the land owners on 24th June, 1966. The award plan also supports the fact that the land in dispute was, in fact, acquired and the possession was taken from the plaintiff-respondents. 8. As per learned counsel for the KDA, the Charitable Institution, that is, Shayama Swasthya Kendra of Vishwanath Thakkar does not exist on the site. The plaintiff-respondent has utterly failed to prove its own case. The plaintiff-respondent has failed to show any document to prove its ownership over the plots in dispute. The Izazatnama does not have any evidencery value. The Trial Court as well as the Lower Appellate Court have committed gross error of law in passing the judgments and decrees without applying their mind. The KDA wanted to file a written statement on 6.5.1993, but the said opportunity was not afforded to it. The decree had been wrongly passed under Order VIII, Rule 10, CPC. The rights and title between the parties were disputed. Both the plots were acquired by the KDA and the possession thereof had already been taken by it. The land stood vested in the State or the Local Body and the same cannot be now released. The plaintiff-respondent had failed to prove its case. The Lower Appellate Court had also failed to discharge its duty as Appellate Court. Gross error has crept in the judgment of the Lower Appellate Court in affirming decree of the Trial Court. The findings recorded by the Lower Appellate Court were erroneous as it has unnecessarily held that the proceedings for betterment of the area were being taken by the KDA and there is no justification for demolition of the property held by the plaintiff-respondent. 9. The findings recorded by the Lower Appellate Court were erroneous as it has unnecessarily held that the proceedings for betterment of the area were being taken by the KDA and there is no justification for demolition of the property held by the plaintiff-respondent. 9. Sri R.N. Singh, learned Senior Counsel appearing for the Appellant, KDA, has placed reliance on the judgments in Laxmi Chand and others v. Gram Panchayat Kararia and others, JT 1995 (8) (SC) 195; Babul Chandra Mitra v. The Chief Justice and others, AIR 1954 SC 524 ; Anand Kumar v. Union of India and others, 1995 (1) CRC 257 and Ram Das v. Salim Ahmad and others, JT 1998 (9) (SC) 534 in support of his submissions that once the land acquisition proceedings were over, possession taken and the land stood vested in the State or the Local Body, as the case may be, it cannot be divested. He has submitted that even in the ex parte judgment, detailed reasons and findings should have been recorded, but in the present case detailed reasons and findings are absent. 10. Sri Ashwani Kumar Misra, learned counsel for the plaintiff-respondent, has very strongly opposed the Second Appeal. He has led the Court to the judgment rendered by the Trial Court, the Lower Appellate Court and other materials placed on record. 11. According to Sri Ashwani Kumar Misra, learned counsel for the plaintiff-respondent, the plaintiff-respondent is a Charitable Institution. It was established by Dr. Vishwanath Thakkar and after his demise one Baij Nath Thakkar was looking after the affairs of the Society. Much before promulgation of the U.P. Zamindari Abolition & Land Reforms Act, the land was taken from the erstwhile Zamindar of the area, Smt. Vijay Rani Kunwar on which a boundary wall was raised encircling the plots of land in dispute and raising constructions thereupon. The plots of land in dispute were in the exclusive possession and ownership of the plaintiff-respondent. The constructions were existing over the plots of land much before 1959, that is, the alleged year of acquisition of the plots of land by the KDA. In fact, the plaintiff-respondent’s possession, title over the plots in dispute and carrying on charitable Medical Dispensary was never challenged by any of the Civil or Revenue authorities including Nagar Maha Palika. The constructions were existing over the plots of land much before 1959, that is, the alleged year of acquisition of the plots of land by the KDA. In fact, the plaintiff-respondent’s possession, title over the plots in dispute and carrying on charitable Medical Dispensary was never challenged by any of the Civil or Revenue authorities including Nagar Maha Palika. The cause of action accrued on 20.1.1990 when the Authorities of the KDA came to the site and demolished the boundary wall on 29.1.1990. The Suit was instituted in the year 1990, which remained pending for three years. No written statement was filed by the KDA. The Civil Court had passed orders for proceeding with the case ex parte and the date for hearing was also fixed. Ultimately relying upon the affidavits filed by the Secretary of the plaintiff-respondent-Society, extracts of Khatauni, Revenue Entries and Patta etc., the Trial Court had found that Shyama Swasthya Kendra, a Registered Charitable Society was the owner of the plots of land in dispute, that is, Plot Nos. 1874 and 1896, situate in Panki-Gangaganj, Kanpur and as such a restraint order was issued on 7.5.1993. The lower Appellate Court had also considered the submissions of the contesting parties. Adequate opportunity was afforded to KDA to place on record the relevant documents, files relating to acquisition proceedings, original award, possession memo and other documents, if any, to show that the abovementioned plots were, in fact, acquired or the possession of the same was ever takenover by the KDA. In fact, the plaintiff-respondent throughout maintained that they were land owners having title and possession over the land in dispute. It was incumbent upon the KDA to have placed original records relating to the land acquisition proceedings. Shayama Swasthya Kendra was carrying on its activities since 1951. 12. The Court had noted that right from 1990 to 1993, several dates were fixed to enable KDA to file its written statement. Even before the Lower Appellate Court and this Hon’ble Court in Second Appeal, no documents have been filed by the KDA. The plaintiff-respondent had produced revenue entries, extracts of Khataunis of 1366 and 1368 Fasalis to show that on Plot Nos. 1874 and 1896, the name of Vishwanath Thakkar was recorded as Sirdar. The lease deed, receipt etc. alongwith the Tehsildar’s certificate dated 15.11.1958 were produced. The plaintiff-respondent had produced revenue entries, extracts of Khataunis of 1366 and 1368 Fasalis to show that on Plot Nos. 1874 and 1896, the name of Vishwanath Thakkar was recorded as Sirdar. The lease deed, receipt etc. alongwith the Tehsildar’s certificate dated 15.11.1958 were produced. It was demonstrated before the Court that the plaintiff-respondent’s name was recorded in the revenue entries and it was having possession over the land since 1951. The plaintiff-respondent had offered substantial amount also to the KDA for its development to be carried out in the area. It was prepared to pay Rs.10/= per Sq. Yard as Development Charge at the relevant time. Despite acting bonafidely and offering adequate charges to carry out development as Development Charge by the plaintiff-respondent in the area by the KDA, the KDA avoided to act legally. He has demonstrated before the Court the copy of the letter written by the plaintiff (Paper No. 27-Ga) that the KDA was free to take the land after paying compensation at the rate of Rs.30/= per Sq. Yard. The plaintiff-respondent was always ready and prepared to pay betterment charges for proper development of the area. Till date, plaintiff-respondent’s applications were not dealt with and disposed of. Under these circumstances, the KDA was not at all justified to demolish the constructions raised over the plots of land in dispute and dispossess a Registered Charitable Institution. A certificate issued by the Sub Divisional Officer, Kanpur dated 27.10.1961 (Paper No. 20-Ga) was also produced to show that this Society was providing Medical facilities, including medicines to the poor citizens of the Society, imparting education to the poor and needy children. The documentary evidence (Paper No. 15-Ka-1) were produced before the Court to demonstrate that the Society is also engaged in distributing medicines to the ailing poor persons of the Society. The Society was also running programme of vaccination and providing medicines to avoid spread of small pocks and Cholera. Sub Divisional Officer had issued a certificate to this effect on 12.4.1953, which is on record. 13. Sri Misra, learned counsel for the plaintiff-respondent, while taking the Court to various documents, pleadings, findings and conclusions recorded in the judgments of the Courts below has heavily emphasised that the plots of land in dispute were never acquired by the KDA nor possession of the plots of land in dispute was ever taken by the KDA. 13. Sri Misra, learned counsel for the plaintiff-respondent, while taking the Court to various documents, pleadings, findings and conclusions recorded in the judgments of the Courts below has heavily emphasised that the plots of land in dispute were never acquired by the KDA nor possession of the plots of land in dispute was ever taken by the KDA. He has pointed out to the Court that even in the alleged award (No. 58, SLAO-I, Case No. 24/59-60) of 30.5.1966, this fact has not been shown. Learned counsel for the plaintiff-respondent has read relevant documents before the Court. He has taken the Court to the Inspection Report which was alleged to have been conducted by the Tehsildar of the KDA on 10th March, 2010. He has laid much emphasis that the Suit was filed in the year 1990 in respect of possession of the plaintiff-respondent since 1950-51. According to him a manufactured document, that is, Inspection Report prepared on 10th March, 2010 is being shown to the Court to mislead the Court in respect of status of the land. Even this report shows that there were tin shades and constructions over the plots in dispute. Bathroom, Toilets, Neem Trees and other materials were available on the plot. No possession memo, as required under the Revenue Manual, duly signed by the Revenue Amin has been placed on record to show that the possession was ever taken. He has maintained that the plaintiff-respondent is in possession of the plots in question. 14. I have heard learned counsel for the parties and perused the record. 15. In the present case, both the Courts below, that is, the learned Trial Court and the Lower Appellate Court have concurrently held that the land in dispute, that is, Plot Nos. 1874 and 1896, situate in Panaki-Gangaganj, Kanpur was granted by the erstwhile Zamindar of the area, Smt. Vijaya Rani Kunwar to the plaintiff-respondent, Shayama Swasthya Kendra, a Registered Charitable Society, much before promulgation of U.P. Zamindari Abolition & Land Reforms Act. The Society was running a charitable dispensary and was engaged in charitable activities for the upliftment and social service of poor and needy persons in a remote area of Kanpur City in the relevant years, that is, in 1950 and 1951. The land was situated in a distant suburb of Kanpur, that is, Panki area. The Society was running a charitable dispensary and was engaged in charitable activities for the upliftment and social service of poor and needy persons in a remote area of Kanpur City in the relevant years, that is, in 1950 and 1951. The land was situated in a distant suburb of Kanpur, that is, Panki area. Both the Courts below have recorded findings of fact, which also derive support from the latest report of the Tehsildar dated 10th March, 2010 that there existed some old constructions over the land in dispute. Earlier when the Suit was instituted, there existed a boundary wall also alongwith certain constructions. Major portion of the boundary wall was demolished by the Authorities of the KDA, giving a cause of action to the plaintiff-respondent to file a Suit in the competent Civil Court seeking reddressal. As per the record, the Suit was instituted in the year 1990 in which several dates were fixed by the Trial Court, directing the appellant to file written statement, but for the reasons best known to the authorities of the KDA, no written statement was filed during a long period of three years, that is, from 1990 to 1993. Specific order was passed for proceeding the case for ex parte hearing, even then the written statement was not filed. Accordingly, the case was listed for final hearing. Even at this stage, the KDA did not choose to file a written statement. Thus, there was no other option left for the Trial Court, except to proceed to decide the Suit on merits under Order VIII, Rule 10 of the CPC. The Trial Court had taken evidence of the plaintiff-respondent, but the Defendant avoided to cooperate. The Suit was ultimately decreed on 7.5.1993. 16. It is relevant to note that even at the appellate stage, the KDA did not file the relevant documents, that is, notification by which the land was sought to be acquired, documents relating to land acquisition proceedings pertaining to Panaki-Gangaganj area and even copy of the award and the documents pertaining to the fact that the land in dispute was actually acquired and possession in pursuance thereof has been taken were not produced. No order or document was placed at the appellate stage also showing as to how much compensation was allowed to the land owners, plaintiff-respondent. The lower appellate Court has noted all these circumstances. No order or document was placed at the appellate stage also showing as to how much compensation was allowed to the land owners, plaintiff-respondent. The lower appellate Court has noted all these circumstances. No cause were shown before the appellate Court even to show as to what had prevented KDA for more than three years in not filing written statement. The KDA had failed to produce relevant documents and materials before the Lower Appellate Court justifying its defence. Even at the stage of Second Appeal, the only defence which was taken was that the record was not available. 17. It is noteworthy that even after filing of the Second Appeal, the appellant-KDA had failed to produce any document, that is, the copy of notification, giving details of the lands to be acquired in Panaki-Gangaganj area, details of Plot numbers, whether Plot Nos. 1874 and 1896 were included in the said notification when the award was published and whether in the said award the disputed plots of land were shown, if so, in which column. No possession memo, duly signed by the Ameen, competent Revenue Authority has been produced to show as to when the possession of the plots in dispute was taken from the land owners. Relevant Extracts from the Award dated 30.5.1966 are being quoted below for the purposes of adjudication of the case : 1. Case No. 24/59-60 2. District Kanpur Tehsil, Kanpur, Pargana Kanpur, Village Panki-Gangaganj 3. Area required 319.06 acres of land 4. Whether Z.A. Or Non Z.A. Zamindari Abolition Area 5. Name of the Acquiring Body Kanpur Nagar Mahapalika 6. Purpose of acquisition For execution of Kalyanpur Panki Pandu Expansion & Green Belt Scheme No. XXXX 7. Date of Notification under 53 of In U.P. Gazette of July 8 and 25, 1959 the Kanpur Area Development Act 8. Date of notification U/S 60 of the In U.P. Gazette dated December 23, 1959 Kanpur Urban Area Development Act 9. Whether Section 17 applied No 10. Date of possession ---- 11. Date of award 30/5/66 12. Amount estimated No preliminary estimate done by the Acquiring Body 13. ................ ............. 18. This Court has carefully gone through the award dated 30.5.1966 placed before the Court alongwith the affidavit. The award clearly shows that in this case, no action was taken under Section 17 of the Land Acquisition Act. Date of award 30/5/66 12. Amount estimated No preliminary estimate done by the Acquiring Body 13. ................ ............. 18. This Court has carefully gone through the award dated 30.5.1966 placed before the Court alongwith the affidavit. The award clearly shows that in this case, no action was taken under Section 17 of the Land Acquisition Act. There is a mention of notifications dated 8th and 25th July, 1959 and 23rd December, 1959, but copies of these notifications have not been produced before the Court to show that whether the land in dispute was sought to be acquired or not. In Column 10, date of possession, and other details are missing. This Column has been kept blank. As mentioned earlier, no possession memo (Kabzanama) has been placed on record to show as to when and in what manner, the plots in question were acquired and possession in pursuance thereof has been taken from the land owners. The whole case set up by the appellant-KDA failed in view of absence of these material facts. Till the stage of Second Appeal, the KDA could not demonstrate before the Courts that when the land in dispute was actually acquired, when and from whom acquired, whether the plot numbers were mentioned in the notification or these plots were not included in the notification. Thus, in the absence of these important materials and in the absence of possession memo (Kabzanama), the plaintiff-respondent’s defence that the plots of land in dispute were not acquired and the possession was not taken by the KDA from the land owners appears to be very sound and acceptable. From the materials and documents available on record, it is clear that the Plots of land remained in possession of the plaintiff-respondent for the last more than sixty years. Plaintiff-respondent proved before all the three Courts, that is, the Trial Court, Lower Appellate Court and the High Court that the plots of land in dispute were in fact acquired by the Charitable Society, that is, the plaintiff-respondent from the erstwhile Zamindar and it had continued to hold possession of the plots of land. 19. The Lower Appellate Court as well as this Court has taken note of the fact that the name of Shayama Swasthya Kendra through its Secretary Baijnath Thakkar was recorded in the Revenue Records, Revenue Entries, Khataunis of 1366 and 1368 Fasalis. 19. The Lower Appellate Court as well as this Court has taken note of the fact that the name of Shayama Swasthya Kendra through its Secretary Baijnath Thakkar was recorded in the Revenue Records, Revenue Entries, Khataunis of 1366 and 1368 Fasalis. The name of Vishwanath Thakkar has been shown as Sirdar. Tehsildar had issued a Certificate dated 5.11.1958 which shows that the plaintiff-respondent was in possession over the land in dispute since 22nd December, 1951. The bona fide of the land owner, plaintiff-respondent, is also clear that the Society itself had offered to Nagar Maha Palika for proper development of the area. Plaintiff-respondent was also prepared to pay the proper charges or development charges to the KDA, but its representation had remained pending. No action has been taken by the Authorities till date. The plaintiff-respondent had responded to a notice sent by the Nagar Maha Palika on 14.11.1973, put-forth its version to the concerned Executive Engineer of the erstwhile Nagar Maha Palika, Kanpur that the plaintiff-respondent was prepared to cooperate with the Authorities. The plaintiff-respondent was ready to pay Rs.10/= per sq. yard in the year 1973 itself. Even despite this clean and honest offer showing the land-owner’s bona fide, no action was taken by the KDA, which was duty bound to take care of proper development of the relevant Zone. It was proved before both the Courts below that the plaintiff-respondent is a Registered Charitable Society and it was, in fact carrying out its Charitable activities in the area. The Sub Divisional Officer, Kanpur had also issued a certificate on 27.10.1961 to this effect (Vide Paper Nos. 20-Ga and 15-Ka-1), which proved case of the plaintiff-respondent. The Pargana Adhikari, Kanpur had also issued a certificate long back on 12.4.1953, which also showed that the plaintiff-respondent was a Charitable Institution and was involved in Social Service, distributing medicines and helping poor and needy persons of the area. Both the Courts below have also noted that no opportunity of hearing was afforded to the plaintiff-respondent before demolishing the boundary wall and the constructions raised over the plots in dispute and, thus, due procedure as provided under the law was not followed by the appellant, KDA. Both the Courts below have also noted that no opportunity of hearing was afforded to the plaintiff-respondent before demolishing the boundary wall and the constructions raised over the plots in dispute and, thus, due procedure as provided under the law was not followed by the appellant, KDA. Thus, the KDA has utterly failed before the three Courts, that is, the Trial Court, Lower Appellate Court and this Court to show its bona fide and to display as to how and when the plots of land in dispute were acquired, when possession was taken and compensation was paid to the land owners. Thus, it has failed to discharge its burden before all the three Courts. 20. On the basis of oral and documentary evidence, it is, thus, amply clear that the land in dispute was never acquired nor possession was ever taken by the Nagar Maha Palika or KDA and no compensation was paid to the land owner, that is, the plaintiff-respondent for the land acquired. 21. The decisions relied upon by the learned counsel for the appellant do not apply in the present set of facts and circumstances. 22. No substantial question of law is made out warranting interference of this Court under Section 100 of the Code of Civil Procedure in the present Second Appeal where both the Courts below have recorded concurrent findings of fact in the light of the decisions of the Hon’ble Apex Court as Bachhaj Nahar P. v. Nilima Mandal and another, AIR 2009 SC 1103 ; Bellachi (Dead) by L.R. v. Pakeeran, AIR 2009 SC 3293 and Bhuri Bai and others v. Ramnarayan and others, 2009 (4) SCC 56 ; Kashmir Singh v. Harnam Singh and another, AIR 2008 SC 1749 ; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, AIR 1999 SC 2213 and Kashibai W/O Lachiram and another v. Parwatibai W/o Lachiram and others, (1995) 6 SCC 213 . 23. In view of the above discussions, the appellant has failed to make out any substantial question of law to be considered by this Court. Even scrutinising the case on facts, this Court finds that the appellant has failed to make out any case in its favour. The findings recorded by the Courts below are unassailable and do not require any interference by this Court. Accordingly, the Second Appeal fails and is dismissed. ————