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2016 DIGILAW 4063 (ALL)

Rahman Khan v. State Of U. P.

2016-12-16

RAGHVENDRA KUMAR

body2016
JUDGMENT Raghvendra Kumar, J. Heard learned counsel for the appellants. 2. Initially the plaintiff-Rahman Khan and another have instituted a suit against the defendants-State of U.P. and others with the prayer to declare the order dated 29.4.1989 passed by defendant No.3 and the order dated 28.7.1992 passed by defendant No. 2 to be null and void, consequently, a decree for permanent injunction be passed. 3. The suit was contested and vide order dated 17.7.2013 passed by Additional Civil Judge (Senior Division) Court No.2, Agra the suit was dismissed. The plaintiffs-appellants instituted the Civil Appeal No. 191 of 2013 against State of U.P.and others assailing the judgment and order dated 17.7.2013 passed by learned Trial Court in O.S.No. 197 of 2010. The learned First Appellate Court vide order dated 19.10.2016 passed by Additional District Judge , Court No. 3, Agra dismissed the appeal. 4. Learned counsel for appellant has placed reliance upon 2014 (124) RD 178 Suresh vs. State of U.P.and others, 1997 ( 88) RD 281 ( PURAN and another vs. Collector, Muzaffar Nagar and others and JT 2000 (7) SC 379 ( Shreeopat vs. Rajendra Prasad & Ors. 5. On the strength of the aforesaid proposition of law, it has been submitted that the defendant was required to establish the identity of property in dispute with respect to which the proceedings under section 122-B of U.P.Z.A. and L.R Act (hereinafter to be referred as 122-B of the Act') were initiated. It has further been submitted that in the proceedings order passed by defendant nos. 2 and 3 with respect to the proceedings under section 122-B of the Act were null and void. It has further been submitted that the observations regarding survey commission by the trial court were not required since it was incumbent upon the defendant-respondent to move the application for issuance of the survey commission to fix the identity of the property in dispute in the proceedings under section 122-B of the Act. Further, learned counsel for the appellant plaintiff has submitted that in the light of observation made by learned Trial Court as contained at Page No. 48 and 49 of the Paper Book that the Trial Court has taken notice that the defendants in their notice have failed to disclose the area over which the alleged land encroachment was made. 6. Further, learned counsel for the appellant plaintiff has submitted that in the light of observation made by learned Trial Court as contained at Page No. 48 and 49 of the Paper Book that the Trial Court has taken notice that the defendants in their notice have failed to disclose the area over which the alleged land encroachment was made. 6. Admittedly, the suit for relief of quashing of the order passed by defendant No. 2 and 3 have been assailed before the Civil Court as being null and void. The plaintiff has not disclosed the plot number over which the house in question situates. The trial court has made an observation that the consolidation proceedings were also conducted in the village and the plaintiff-appellant did not launch any proceeding during the consolidation proceedings with respect to their title or nature of possession over the property in dispute. It was admittedly, a suit instituted by plaintiff-appellant before the Trial Court. It was incumbent upon the plaintiff-appellant to establish the identity of the house in question and to establish that the house in question did not in any way affect Khasra Plot Nos. 366,369 and 370. This burden has not been effectively discharged in a civil suit. 7. It is settled proposition of law that the plaintiff has to stand on his own legs and he is under law obliged to prove his case through the cogent and reliable evidence. The plaintiff was obliged to establish through the survey commission that he did not encroach upon any portion of the land for which the proceedings under section 122-B of the Act were launched against him. The First appellate Court has also recorded an observation at Page No.20 of the Paper Book that the defendants have failed to prove any encroachment by the plaintiff over Khasra Plot Nos. 366, 369 and 370, respectively. The First Appellate Court has also dealt with the aspect of the proceedings initiated against the plaintiff under section 122-B of the Act and has made observation that the land in question before the Khasra Plot No. 366,369 and 370 are respectively recorded as Parikrama Marg, play ground and school. The observations of the trial court as referred at Page Nos. 49 of the Paper book is of no avail since the plaintiff is obliged to prove the pleadings in his favour. The observations of the trial court as referred at Page Nos. 49 of the Paper book is of no avail since the plaintiff is obliged to prove the pleadings in his favour. The order passed under section 122-B of the Act were assailed before appropriate forum and lastly before the High Court and no adverse observation has been made against the validity of the proceedings by any Court. 8. Learned counsel for the appellant has failed to demonstrate that the court of first instance which proceeded against the plaintiff under section 122-B of the Act were not legally competent to proceed. 9. From the critical appraisal of the judgment of the courts below there appears no perversity in the finding recorded by the courts below nor the learned courts below have committed any mistake regarding misreading of the evidence nor the findings have been recorded in absence of the evidence. The view taken by the courts below is substantiated from the material available on record. 10. No substantial question of law arises. 11. The appeal is bereft of merit and is, accordingly, dismissed.