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2016 DIGILAW 1780 (ALL)

Amir Alam Khan S/O Late M K Mohammad v. L. D. A.

2016-05-09

RITU RAJ AWASTHI, SATYENDRA SINGH CHAUHAN

body2016
JUDGMENT (Delivered by Hon'ble Satyendra Singh Chauhan, J.) The appellant through this appeal has challenged the order dated 27.9.2011 passed by the Civil Judge (Senior Division), Lucknow. 2. The facts in respect of the present dispute are that Raza Mohammad Ali Mohammad Khan of Mahmoodabad Estate was recorded as tenure holder (Bhumidhar) of Khasra Plot No.380, area 3 bigha 18 biswa, situated in village Sheikhapur, Pargana, Tehsil and District Lucknow. Name of Late Maharaj Kumar Mohammad Mahmood Hasan Khan was continuously recorded in revenue record of 1356 fasli, 1359 fasli, 1362 fasli, 1365 fasli, 1370 fasli to 1372 fasli, 1375 fasli to 1378 fasli, 1401 fasli to 1406 fasli and the title of ownership of the land was not put to challenge by anybody at any point of time. The original recorded tenure holder, namely, Maharaj Kumar Mohammad Mahmood Hasan Khan (for short "Mahmood Khan") died on 11.5.1993 and after his death, name of the appellant on the basis of his last registered will dated 2.3.1990 was recorded in the revenue record vide order dated 3.10.1993 passed by the Tehsildar under Section 34 of the U.P. Land Revenue Act in case no.178/509. Nagar Mahapalika admittedly issued acquisition notice under Section 357 of the Uttar Pradesh Nagar Mahapalika Adhiniyam (for short "the Adhiniyam") in the year 1962 and thereafter information was given to all the recorded tenure holders about the acquisition of their plots. The Special Land Acquisition Officer had issued an Ittilanama/possession demand letter to all the acquired/owners and in pursuance thereof an Ittilanama was issued to the predecessor of the appellant demanding possession of the acquired plots in which Khasra No.380 of Village Sheikhapur was not mentioned. After the acquisition, in the year 1995 respondent no.2 along with some officials of respondent no.1 illegally tried to interfere in the peaceful possession of the appellant, then his mother late Smt. Iqbal Jahan Begum and the appellant preferred a suit for permanent injunction in Civil Court, Lucknow which was registered as Regular Suit No.475 of 1995 and an injunction order was passed in favour of the plaintiffs therein. The said injunction order continued during pendency of the appeal; after dismissal of the suit and appeal, in Special Leave Petition also, but ultimately Special Leave Petition was dismissed giving liberty to the appellant to file declaratory suit seeking declaration in respect of ownership. The said injunction order continued during pendency of the appeal; after dismissal of the suit and appeal, in Special Leave Petition also, but ultimately Special Leave Petition was dismissed giving liberty to the appellant to file declaratory suit seeking declaration in respect of ownership. In pursuance to the liberty given by the Hon'ble Supreme Court, the appellant proceeded to file the regular suit for declaration and along with the suit for declaration, an application for injunction was also moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The trial court considered the application moved on behalf of the appellant and proceeded to reject the injunction application finding that the land in question was acquired by means of boundaries and the boundaries indicated the area comprised within those boundaries to be acquired. The said acquisition was made subject matter of award dated 31.12.1979 and award dated 11.4.1977. It was also found by the trial court that the sale deed was executed by the father of the appellant to various persons by launching a housing project. The said persons also claimed compensation on the basis of the sale deeds, but the Land Acquisition Officer instead of granting any compensation referred the matter to the Nagar Mahapalika Tribunal (for short "the Tribunal") for declaration of their claim. The sale deeds were executed by the father of the appellant to the extent of 2 bigha 10 biswa 9 biswansi and 2 kachwansi to the various persons in the year 1959 and they became owner of the plots in question on the basis of the aforesaid sale deeds. The remaining 1 bigha 7 biswa 10 biswansi and 18 kachwansi was also acquired by the respondents under Section 357 of the Adhiniyam. Both the awards were rendered separately and the mother of the appellant received compensation in respect of the first award dated 11.4.1977. The notification which was put to challenge by way of Writ Petition No.137 of 1974 was dismissed by this Court by means of judgment and order dated 18.2.1977 and the Hon'ble Supreme Court also dismissed the SLP and the acquisition has attained finality. The trial court did not find any favour with the appellant finding that the land in question did not belong to the appellant and if any entry was existing in the Khetauni, then that will not confer any right in favour of the appellant. The trial court did not find any favour with the appellant finding that the land in question did not belong to the appellant and if any entry was existing in the Khetauni, then that will not confer any right in favour of the appellant. The trial court proceeded to reject the application for injunction. Against the aforesaid order, the present appeal has been preferred. 3. Submission of counsel for the appellant is that the land of Khasra No.380 has never been acquired and right of the appellant remains intact in respect of Khasra No.380. The trial court has conducted mini trial which is not permissible under law in view of the decision rendered by the Division Bench of this Court in earlier round of litigation in FAFO No.1456 of 2010 by means of order dated 1.8.2011. Further submission is that the property belongs to the appellant and as such, injunction should have been granted in favour of the appellant. It is also submitted that in earlier round of litigation when injunction suit was filed injunction was continuing in the trial court and in this Court as well as before the Hon'ble Supreme Court and therefore, the injunction ought to have been granted by the trial court instead of rejecting the injunction application. Learned counsel has laid much stress upon the map which was filed before the trial court to indicate that the cross has been made in respect of plot no.380 and therefore, the cross indicates that the land in question has not been acquired. Certain Khetaunies have also been filed and relied upon to say that the name of the appellant is continuing as owner and therefore, title of the appellant cannot be doubted and as such, prima facie case and balance of convenience lies in favour of the appellant. 4. Sri Jaspreet Singh, learned counsel for the respondents has submitted that the appellant has played fraud in the revenue record and got his name mutated on the basis of the will deed executed on 2.3.1990 though the father of the appellant had no right or title to execute the will deed as plot no.380 already stood acquired under the scheme known as Aliganj Road and City Expansion Scheme. The sale deeds in respect of various persons have been executed in the year 1959 by the father of the appellant and those persons have come forward to claim compensation in the award rendered on 31.12.1979. Once the persons, who have got sale deeds, have claimed compensation and their claim has been considered and referred under Section 30 of the Land Acquisition Act to the court, it itself goes to indicate that the land in question has been acquired under the Aliganj Road and City Expansion Scheme under Section 357 of the Adhiniyam and therefore, neither any will deed could have been executed nor any mutation could have been accorded in favour of the appellant. He has also submitted that in respect of rest of the area i.e 1 bigha 7 biswa 10 biswansi and 18 kachwansi, the first award was given. The award was given on 11.4.1977 and the mother of the appellant has received the compensation in respect of the said award and after receiving the compensation, no argument can be raised and neither can be entertained by the Court that the amount has not been received. Learned counsel has also submitted that reliance placed on the map is also out of context as in the award dated 31.12.1979 acquiring 2 bigha 10 biswa, 9 biswansi and 2 kachwansi land of the plot owners in respect of which sale deed has been executed by the father of the appellant way back in the year 1959 shows that the land which has not been acquired has been shown by slanting lines and as such reliance placed by the appellant's counsel in respect of the map containing cross over plot no.380 is of no consequence and neither any reliance can be placed on the said map. Learned counsel submits that till life time of the mother of the appellant, no effort was made to get her signature verified, but after her death, an objection has been taken in regard to the genuineness of the signature on the receipt voucher and it is an afterthought device. Learned counsel submits that once the entire plot no.380 has been acquired and the same is established from the award given in favour of one of the plot owners by the Presiding Officer, Awas Evam Vikas Tribunal, Lucknow by means of award passed in Misc. Learned counsel submits that once the entire plot no.380 has been acquired and the same is established from the award given in favour of one of the plot owners by the Presiding Officer, Awas Evam Vikas Tribunal, Lucknow by means of award passed in Misc. Case No.41 of 1981 registered under Section 18 of the Land Acquisition Act. Learned counsel, therefore, submits that the appellant has got no prima facie case and neither he is entitle for any relief in this regard unless and until he is able to show prima facie case and balance of convenience in his favour. 5. We have heard learned counsel for the parties and perused the record. 6. The appellant in the earlier round of litigation had filed Injunction Suit No.475 of 1995, Amir Alam Khan Vs. Lucknow Development Authority and the said suit came to be decided by means of judgment and order dated 29.8.2009. Against the said judgment, First Appeal No.97 of 2009 was filed. The first appeal was dismissed by this Court by means of judgment and order dated 4.5.2010. After dismissal of the aforesaid first appeal, Special Leave Petition No.14324 of 2010 was filed before the Hon'ble Supreme Court and the same was dismissed by means of judgment and order dated 13.5.2010. Learned counsel for the appellant has placed much reliance upon the observation made in the aforesaid order which gave liberty to the appellant to file a suit for declaration to prove his title and possession over the plot in dispute and the observations made by both the trial court and the High Court in their judgments and in these proceedings shall not be treated as resjudicata in the said suit. Learned counsel for the appellant on the basis of the said observations submitted that any finding recorded in the earlier suit or in the first appeal before this Court will have no bearing upon the present proceedings and the present proceedings have to be considered independently in the light of the evidence adduced by the parties before the trial court. 7. The suit for declaration has been filed in pursuance to the order passed by the Apex Court. Once liberty has been given, the appellant has full opportunity to raise his claim in accordance with law for proving his title and possession. 8. 7. The suit for declaration has been filed in pursuance to the order passed by the Apex Court. Once liberty has been given, the appellant has full opportunity to raise his claim in accordance with law for proving his title and possession. 8. So far the question of grant of injunction is concerned, learned counsel for the appellant has laid much emphasis upon the injunction order which was passed during pendency of the injunction suit, which was dismissed and later on, in the first appeal filed before this Court which was ultimately dismissed vide judgment and order dated 4.5.2010. Learned counsel for the appellant, therefore, has submitted that the appellant is entitled for grant of interim injunction as the appellant has filed the suit for declaration of title and his title is to be declared and he has been able to prove that he was having prima facie title in respect of the land in dispute and was also in possession and therefore, injunction was inevitable in his favour. 9. To appreciate the argument of the counsel for the appellant, we have to consider the finding recorded by the trial court and the arguments raised on behalf of the appellant and we have to see that in respect of Kasra No.380 measuring 3 bigha 18 biswa the appellant has got prima facie title over the land in dispute and whether he can claim any possession on the basis thereof. 10. The appellant's father, namely, Maharaj Kumar Mohammad Mahmood Hasan Khan, who was the owner of the land in question proceeded to execute sale deeds in the year 1959 in favour of various persons in respect of the land measuring 2 bigha 10 biswa 9 biswansi 2 kachwansi. Copies of the sale deeds have been placed on record as Annexures No.CA-9 to CA-9A, CA-9-B, CA-9C, CA-9D, CA-9E and CA-9F to the counter affidavit, which themselves go to indicate that the sale deeds were executed by the father of the appellant in favour of various persons to the extent of 2 bigha 10 biswa 9 biswansi and 2 kachwansi. In the award dated 31.12.1979, which is the second award, all the land owners filed their objection claiming compensation. The award could not be made but their case was considered and referred under Section 30 of the Land Acquisition Act to the competent authority for entitlement of compensation. In the award dated 31.12.1979, which is the second award, all the land owners filed their objection claiming compensation. The award could not be made but their case was considered and referred under Section 30 of the Land Acquisition Act to the competent authority for entitlement of compensation. The matter was considered by the Tribunal and the Tribunal passed an order in favour of two of the plot owners, namely, Pradeep Chopra and Sudhir Chopra, which has been annexed as Annexure No.CA-11 to the counter affidavit. The said award was passed subject to the condition that the compensation amount shall be paid only after determination of entitlement. The remaining land measuring 1 bigha 7 biswa 10 biswansi and 18 kachwansi was included in the award dated 11.4.1977 and a specific award was made in favour of the mother of the appellant Smt. Iqbal Jahan Begum. A notice was sent for taking compensation on 20.2.1977. Apart from it, Smt. Iqbal Jahan Begum has received the compensation on 25.4.1977 to the extent of Rs.26,243.45 only. It is to be noted that the said receipt of the mother of the appellant was never put to challenge and only after death of the mother of the appellant, her signatures had been challenged receiving the compensation. The aforesaid challenge made by the appellant in respect of non-receipt of the compensation at a belated stage after death of the mother itself goes to indicate that this has been done only with a view to avoid signature verification of the mother of the appellant. The land having been acquired on both the occasions i.e. one remaining land and the other in respect of which sale deeds were executed. The claim of the appellant on the basis of prima facie case is not substantiated. 11. Learned counsel for the appellant has laid much emphasis from the notification by means of which acquisition has been made, but the notification itself goes to indicate that plot numbers have not been mentioned and only boundaries have been mentioned and within four corners boundaries plot no.380 lies. 12. Further dispute has been raised in regard to the map and much emphasis has been laid that plots, which have not been acquired, have been shown by cross, but the finding recorded in the award dated 11.4.1977 itself goes to indicate that the land which has not been acquired is shown by slanting lines. 12. Further dispute has been raised in regard to the map and much emphasis has been laid that plots, which have not been acquired, have been shown by cross, but the finding recorded in the award dated 11.4.1977 itself goes to indicate that the land which has not been acquired is shown by slanting lines. There may be some chances of manipulation in the map, but it appears that when the award was given, position of the map was mentioned in the award itself is sufficient proof of the fact that the map which has been shown with cross on plot no.380 cannot be relied upon and neither on the basis of that right over the land can be claimed. 13. Learned counsel for the appellant has also placed reliance upon the order dated 5.6.2000 passed under Section 30 of the Land Acquisition Act by the Tribunal wherein it has been said that plot no.380 has not been acquired. In the opinion of the Court, whether land has been acquired or not, that could not have been decided in proceedings under Section 30 of the Land Acquisition Act and under Section 30 of the Land Acquisition Act only entitlement or apportionment of compensation is contemplated. If the land has not been acquired, then there was no occasion for making any award. The said order was challenged by moving a recall application, which is pending and has not been decided. Letters for taking possession were also issued by the authorities acquiring the land in question on 31.1.1979 and 19.4.1976. These two letters also established that possession was taken by the LDA and after acquiring the land in question, agreement was executed with the respondent and the land in question was allotted to the respondent Housing Society for developing the land. The appellant has not been able to make out prima facie case nor he has been able to show that he is continuing with possession over the land in question and even if the appellant is having some semblance of title, then the same would be considered and decided by the trial court. The appellant has not been able to make out prima facie case nor he has been able to show that he is continuing with possession over the land in question and even if the appellant is having some semblance of title, then the same would be considered and decided by the trial court. Reliance placed by the counsel for the appellant upon the judgments rendered in the case of Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass [2005 (23) LCD 298 SC], Wander Ltd. and another v. Antox India Pvt. Ltd., [ 1991 (9) LCD 290 SC], Anupam Sahkari Avas Samiti Ltd. v. Addl. Distt. Judge, Court No.4, Lucknow and another, [ 2006 (24) LCD 137 ], State of Andhra Pradesh v. Kalva Suryanarayana and others, (1992) 2 SCC 732 , Between Smt. Chankali and Doodh Nath Mani and others, [ 2011 (84) ALR 385 ] and Rahmullah and others v. District Judge, Siddharth Nagar and others, [ 1999 (17) LCD 211 ], in the facts and circumstances of the case are not applicable in the case in hand. The appellant has proceeded to base his claim on unfounded title and therefore in these circumstance, he is not entitled for any injunction. 14. The first appeal from order is devoid of merit. It is accordingly dismissed.