Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1327 (ALL)

Bhaggu Ram v. Gulab Chand

2014-04-24

DINESH GUPTA

body2014
JUDGMENT Dinesh Gupta,J.: - This Second appeal is preferred against the judgment and decree dated 14.8.1991 passed by IX Additional District Judge, Varanasi, in Civil appeal no.215 of 1989 arising out of the judgment and decree dated 5.12.189 passed by VII Munsif Magistrate, Varanasi in original Suit No.253 of 1984. 2. The brief facts giving rise to this appeal are that plaintiff respondent, hereinafter called the respondent, filed an original suit for permanent prohibitory injunction with the prayer that the defendant should be restrained from demolishing the property in dispute by alteration or damaging the same during pendency of the tenancy and further not to change the nature of the property. 3. The plaintiff was the resident of district Varanasi. The property in dispute originally belonged to Smt. Chandrika Kumari wife of Lal Kharegmal Sakin who executed a lease in favour of Kattal on 15.12.41 and handed over the possession of the same. After the said lease deed the Kattal constructed a house and a sahan towards south and also raised thatched structure and the same was registered in the records of the municipal board as no. A-36/30 A. Two sons born to Kattal, namely Ranu and Khanu and Ranu died during the lief time of Kattal leaving behind the plaintiffs as his heirs and in the year 1960 kattal also expired and after his death khanu and plaintiffs became owner of the property in dispute. On the request of the defendant plaintiffs let out disputed property to the defendant on payment @ of rent Rs.40/- per month. The defendants has refused to pay the rent and they also threatened that they will demolish the Madai and Dalan and will raise new construction, hence the plaintiff filed this suit. 4. Learned counsel for the defendant filed written statement and denied the facts stated in the plaint and submitted that in fact the defendant is in possession of the disputed land for more than 24 to 25 years and he raised the disputed constructions and in the open land the defendant used to tie their cattles and the plaintiff has no concern with the property in dispute on the alternative the defendant also taken a plea of adverse possession the defendant also denied the relationship of landlord and tenant with the plaintiff and defendant. The trial court framed following issues: 1Û D;k oknh fookfnr lEifRr dk ekfyd gS\ 2Û D;k izfroknh oknh dh vksj ls fookfnr lEifRr dk 40@& : 0 pkyhl : i;k ekgokn ij fdjk;snkj gS \ 3Û D;k fookfnr lEifRr ij izfroknhx.k dk dCtk yxkrkj csjksd Vksd 25 lky ls gS vkSj os izfrdwy dCts ds vk/kkj ij fookfnr lEifRr ds ekfyd gks x;s gS \ ;fn gka rks mldk izHkko \ 4Û D;k oknh dk okn fcoU/ku o ,Dohlsal ds fl)kUr ls ckf/kr gS \ 5Û D;k nkos dk ewY;kadu de fd;k x;k gS vkSj U;k; 'kqYd de vnk gS \ 6Û D;k nkok oknh /kkjk 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS \ 7Û D;k nkok oknh /kkjk 64] 65 fe;kn vf/kfu;e ls ckf/kr gS \ 8Û D;k oknh fdlh vU; vuqrks"k dk vf/kdkjh gSS \ 5. On the basis of the facts and evidence the trial court decided the issue no.2, in favour of the defendant and held that the defendant is not the tenant. 6. While deciding the issue nos. 1 and 3 the trial court held that the plaintiff is the owner of the property in the dispute and the defendant has failed to prove their adverse possession over the property in dispute and ultimately the trial court dismissed the suit of the plaintiff. The plaintiff preferred the appeal against the judgment which was registered as civil appeal no.215 of 1989 and same was transferred to the court of IX Additional District Judge who decided the same vide its judgment dated 14.8.1991 allowing the appeal and quashing the judgment dated 5.12.1989 passed by the trial court and decreed the suit of the plaintiff for the relief of permanent prohibitory injunction. The defendant preferred the appeal against the same which is registered as Second appeal no.1439 of 1991. 7. Appeal was admitted and lower court record was summoned. 8. Heard learned counsel for the parties. 9. While admitting the appeal the second appellate court framed the following substantial questions of law: 1. Whether the lower appellate court in not accepting the claim of the defendants appellants in respect of their adverse possession and rights accrued thereon has taken a correct view to the facts and law? 2. 8. Heard learned counsel for the parties. 9. While admitting the appeal the second appellate court framed the following substantial questions of law: 1. Whether the lower appellate court in not accepting the claim of the defendants appellants in respect of their adverse possession and rights accrued thereon has taken a correct view to the facts and law? 2. Whether the lower appellate court has committed a malnifest error of law in not accepting the plea section 9 of U.P.Z.A. and L.R. Act though the trial court has given specific finding on this question of law? 3. Whether, the appeal can be decided without disposing of the cross objection based upon the legal aspect of enforcement Zamindari Abolition in the plaintiff village? 10. The counsel for the appellant submitted that although the Court has admitted this appeal on the substantial questions of law in respect of adverse possession however he is not pressing the same since the appellant has taken a plea that he is in possession over the property in dispute for more than 24-25 years and plea of adverse possession was negated by both the courts below. He has also not pressing this plea of adverse possession. 11. So far as the vesting of the land appurtenant to the thatched structure (Madai) under Section 91 of U.P.Z.A. and L.R. Act is concerned he is also not pressing the same. Since admittedly the land was in possession over the property in dispute only for more than 24 to 25 years from the date of filing of suit and the U.P. Z.A. and L.R. Act came into existence in the year 1951 and there is no question of vesting of land appurtenant to the Madai in favour of the appellant and is also not pressing the pleading of Section 9 of U.P.Z.A. and L.R. Act. 12. The only question or argument raised before this court that the plaintiff has prevented his right by long possession over the property in dispute. Learned counsel submitted that the appellant is in possession over the land in dispute for more than 24 to 25 years and he has a right to protect his possession. The counsel further submitted that admittedly appellant is in possession over the property in dispute. Learned counsel submitted that the appellant is in possession over the land in dispute for more than 24 to 25 years and he has a right to protect his possession. The counsel further submitted that admittedly appellant is in possession over the property in dispute. The contention of the plaintiff that appellant is the tenant has not been accepted by the trial court and the trial court has given cogent reasons for not accepting the appellant as tenant of the respondent. Further the trial court has also held that time to time the defendant are renovating and remodeling and repairing the same during the course of their possession and the respondent never raised any objection to the same. The counsel further submitted that the trial court has wrongly recorded the finding that the plaintiff is the owner of the property in dispute. 13. The counsel lastly submitted that plaintiff is not entitled to any relief claimed by him and the suit of the plaintiff is liable to be dismissed and the appeal deserves to be allowed. 14. The counsel for the respondent submitted that plaintiff filed a suit for the permanent prohibitory injunction treating the appellant as his tenant and claimed relief for restraining the defendant from changing the nature of the property and also demolishing the same. 15. The counsel further submitted that during the pendency of suit the respondent filed a suit for ejectment of the appellant before the Judge small cause court and the suit was decreed for the ejectment of the appellant. Revision filed by the appellant was also dismissed and the appellant preferred a writ petition. During the pendency of writ petition the respondent executed his decree through court and has taken the possession over the property in dispute and now is in possession of the property. As such this appeal for all purposes has become infructuous. 16. The counsel further submitted the trial court held that plaintiff is the owner of the property. The appellate court also gave concurrent current finding regarding the ownership of the plaintiff respondent. So far as the relationship of landlord and tenant is concerned the appellate court has recorded its categorical finding that the defendant is the tenant of the plaintiff and the plaintiff has rightly filed a suit for ejectment and taken over the possession over the property in suit. 17. So far as the relationship of landlord and tenant is concerned the appellate court has recorded its categorical finding that the defendant is the tenant of the plaintiff and the plaintiff has rightly filed a suit for ejectment and taken over the possession over the property in suit. 17. Learned counsel for the respondent although admitted this fact that respondent filed the suit for ejectment which was decreed and the revision filed by him was also dismissed. Respondent has taken over the property in dispute. However, he contended that in case this appeal is allowed he will be put into the possession as his possession was taken over forcibly. 18. I am unable to accept the contention raised by learned counsel for the appellant. So far as the ownership of the plaintiff respondent is concerned there is concurrent findings recorded by both the courts below. The plea of adverse possession and vesting of the appurtenant land under Section 9 of U.P.Z.A. & L.R. Act have not been pressed by the appellant before this Court. 19. The only question raised by the appellant is long possession over the property in dispute. 20. The possession of the appellant is not disputed. Now the only question arises before this court whether possession of the appellant is in the capacity of tenant or in the capacity of owner. The defendant has not filed any evidence to prove his ownership. The only contention of the appellant is that he is owner by long possession. On the contrary the plaintiff has filed this suit on the basis of title and voluminous documentary evidence filed to prove the title of the plaintiff. Both the courts below have given a concurrent finding regarding his ownership. Even if the possession of the appellant is accepted it is either by way of tenancy or it may be permissible possession. In both the cases respondent is entitled for possession. So far as this appeal is concerned, the appeal is only against the relief of the permanent prohibitory injunction restraining the defendant appellant from demolishing or changing the nature of the property in dispute as the same has been decreed by the first appellate court. There is another aspect of this case which also disentitled the appellant to any relief in a suit for ejectment against the appellant. A decree has been passed for his eviction. There is another aspect of this case which also disentitled the appellant to any relief in a suit for ejectment against the appellant. A decree has been passed for his eviction. Revision filed by him also dismissed and the plaintiff respondent has taken possession over the property in suit in a lawful manner and by a legal proceeding it can not be said that plaintiff has taken possession forcibly. 21. The appellant has not been able to show any perversity in the judgment of the appellate court. Neither any evidence is misread or misinterpreted or left for consideration. 22. The possession of the appellant is also not disputed. It is only permissive possession. In view of the above discussion the appeal lacks merit and deserves to be dismissed.