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2017 DIGILAW 351 (UTT)

KESAR RAM v. STATE

2017-07-04

LOK PAL SINGH

body2017
JUDGMENT : LOK PAL SINGH, J. 1. Present second appeal has been preferred by the appellants against the judgment and order dated 10.01.2003 passed by Additional District Judge/III Fast Track Court, District Udham Singh Nagar in civil appeal no. 14/2002 whereby the first appellate court has allowed the appeal filed by the State and set aside the judgment and decree dated 19.09.2002 passed by the trial court. 2. In brief, facts of the case are that the plaintiffs (the appellants herein) filed a suit being Suit No. 213 of 1996 for permanent prohibitory injunction against the defendants/respondents stating that they are in possession over the land in dispute since 1970. It was also stated that the plaintiffs belong to Scheduled Caste Community and are in continuous possession over the land since long time and the defendants have no right to dispossess the plaintiffs. The defendants contested the suit and filed their written statement denying the plaint averments. In the written statement, it was contended by the defendants that suit for injunction is not maintainable at the behest of the plaintiffs. On the pleadings of the parties, the trial court framed the following issues: (i) Whether the plaintiffs are in sole possession over the plot Nos. 7, 6 & 2? (ii) Whether the suit is not maintainable as stated in the written statement? (iii) Whether the suit filed by the plaintiffs is liable to be dismissed on the ground of not giving notice under section 80 C.P.C.? (iv) Whether the plaintiffs are entitled for any compensation? 3. Thereafter, both the parties led their oral and documentary evidence. After hearing the learned counsel for parties and upon perusal of the evidence led by the parties, learned trial court decided all the issues in favour of the plaintiffs and vide judgment and decree dated 19.09.2002 allowed the suit. Being aggrieved by the said judgment and decree, civil appeal no. 40 of 2002 State & anr. v. Kesar Ram and ors. was filed. The first appellate court, vide judgment and decree dated 10.01.2003, allowed the appeal and set aside the judgment and decree dated 19.09.2002. Hence, present second appeal has been filed by the plaintiffs/appellants. 4. This second appeal was admitted on 11.02.2003 on the following substantial questions of law:- "Whether the appellate court has jurisdiction to reverse finding of trial court without taking the additional evidence or framing the additional issue?" 5. Hence, present second appeal has been filed by the plaintiffs/appellants. 4. This second appeal was admitted on 11.02.2003 on the following substantial questions of law:- "Whether the appellate court has jurisdiction to reverse finding of trial court without taking the additional evidence or framing the additional issue?" 5. Lateron, following substantial question of law was also framed:- "Whether first appellate court erred in law in allowing the first appeal without reverting/setting aside the finding recorded by the trial court?" 6. I have heard learned counsel for the parties and perused the entire material available on record. 7. The Court finds that while deciding the appeal, the first appellate court recorded a finding that the plaintiffs are not in possession, therefore, they are not entitled for injunction against the real owner of the property and the possession of the plaintiffs has no relevance. The first appellate court also recorded a finding that the plaintiffs have not filed any suit for declaration of their rights as was directed by the Hon'ble High Court. The trial court has recorded categorical finding to the effect that the plaintiffs are in possession over the land in dispute and this fact was not specifically denied by the defendants/respondents, rather the defendants have contended that the possession of the plaintiffs is not lawful and a eviction suit has already been filed by the State Government against the plaintiffs/appellants, but even after that the first appellate court, without reversing the finding of the trial court and without recording its own independent finding on the question of possession, allowed the appeal. Since the appeal has been allowed by the first appellate court without recording its own and independent finding with regard to the possession, therefore, the judgment and order passed by the first appellate court is not sustainable in the eyes of law and is liable to be quashed. 8. Since the appeal has been allowed by the first appellate court without recording its own and independent finding with regard to the possession, therefore, the judgment and order passed by the first appellate court is not sustainable in the eyes of law and is liable to be quashed. 8. This Court further reiterates that since the first appellate court has allowed the appeal by the impugned judgment and order without reversing the findings recorded by the trial court to the effect that the plaintiff is in possession and a decree of permanent injunction has been passed in favour of the plaintiff and that the plaintiff shall not be dispossessed from the property in dispute without due process of law, there was hardly no occasion for the first appellate court to form its own different opinion without reversing the finding of possession recorded by the trial court, more particularly, when the defendant had not denied the possession of the plaintiff. It is settled proposition of law that a person who is in a settled possession cannot be dispossessed, even by the true owner without due process of law, but the first appellate court has failed to consider this law while allowing the appeal. The Court further observes that when the State was itself contending that the proceedings of eviction of the appellant are going on, there was no occasion to allow the State appeal filed by the State Government. On the basis of findings recorded above, substantial question of law are answered in favour of the plaintiff/appellant. 9. Accordingly, the judgment and order dated 10.01.2003 passed by Additional District Judge/III Fast Track Court, District Udham Singh Nagar in civil appeal No. 14/2002, is set aside. The matter is remanded back to the first appellate court for deciding the civil appeal afresh after adopting the due process of law. 10. With the aforesaid observation and direction, the second appeal stands disposed of. No order as to cost.