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2018 DIGILAW 498 (UTT)

SITA DEVI v. VAN PRABHAGIYA ADHIKARI

2018-12-11

SHARAD KUMAR SHARMA

body2018
JUDGMENT Hon'ble Sharad Kumar Sharma, J (Oral) This is a plaintiffs' Second Appeal, wherein, the plaintiffs question the concurrent judgments rendered by the Courts below, i.e. the judgment dated 28.10.2015 rendered by the I Additional Civil Judge (S.D.), Haridwar, in Original Suit No. 211 of 2007 ‘Bhura Singh (Deceased) & Others vs. Van Prabhagiya Adhikari & Others'. The said judgment dated 28.10.2015 as rendered by the Civil Court, was put to challenge by the appellants before the Appellate Court in a regular Civil Appeal under Section 96 of the Code of Civil Procedure, which was registered as Civil Appeal No. 72 of 2016 ‘Bhura Singh & Others vs. Van Prabhagiya Adhikari & Others', and the same has been dismissed by the judgment dated 14.11.2018. Consequently, the present Second Appeal. 2. The precise case which was developed by the plaintiffs (appellants herein) before the Trial Court was that the property in dispute, which was described more particularly at the foot of the plaint in the following manner: ßfooj.k lEifRr ,d fdrk Hkwfe jdcbZ 35 fc?kk 15 fcLok iq[rk fLFkr ekStk nq/kyk n;kyokyk mQZ Vk¡kVokyk] iñ uthckckn ] rglhy o ftyk gfj}kj] ftlds mÙkj esa taxykr Hkwfe] nf{k.k esa xaxk th] iwjc esa Hkwfe izfroknh uañ 1 o 2 rFkk if'pe esa Hkwfe jfedyk] cqVhjke] vkseizdk'k] gjn;ky] czgeiky vkfn gS] ftls uD'kk utjk esa 'kCn ,ñ chñ lhñ Mhñ ls nf'kZr fd;k x;k gSAÞ 3. It is a property which is claimed by plaintiffs/appellants to be in their cultivatory possession since prior to 1960 and thus they claimed that with the passage of time a Bhumidhari right would have developed in their favour and thus they cannot be evicted from the property as described at the foot of the plaint by figure a, b, c & d except with due process of law. They submitted that as a matter of fact this property is not recorded in the records in the name of the State nor it records any private tenure holder to be the Bhumidhar of the land in question. If that be the situation, the State and its agencies have got any authority in the interfere in the cultivatory of the possession of the appellants. 4. If that be the situation, the State and its agencies have got any authority in the interfere in the cultivatory of the possession of the appellants. 4. This argument of the learned counsel for the appellants is not acceptable by this Court for the reason being that under the theory of eminent domain any land, which is lying within the territorial domain of a State, State herein would mean that the State as specified in the Constitution and, as well as, the country itself that when a land is lying without a title, it would always be vested with the Sate itself, and in that eventuality, no one has got a indefeasible right to encroach upon the public land and claimed a title over it. Admittedly, in the case at hand, the appellants' case is that they would mature their right being in occupation of the same and, hence, in if at all they are to be evicted they could only be evicted with due process of law. They submitted that when on 20.07.2007 there was an interference made by the defendants to the Suit then the necessity arose for them to initiate the Suit for decree of permanent injunction for which they have issued notices under Section 80 of the Code of Civil Procedure as well as Section 106 of Panchayat Raj Act on 17.09.2007. The Suit was contested by the respondent on the ground that for the purposes of getting a decree of permanent injunction the burden of proof of title and a rightful possession has always to be discharged by the plaintiffs, who claim the right of possession over the property in question. 5. Admittedly, according to the evidence on record except the pleadings to the effect that the plaintiffs happen to be in possession over the land in question, there was no other material, which was brought on record by the plaintiffs/appellants to show that their occupation over the land in question was accompanied with a title. 6. After the exchange of pleadings, the learned Trial court framed issues and primarily the concern, which has been expressed by the plaintiffs before the Trial Court was on the issue nos. 2 & 6, which was with regards to the as to whether the plaintiffs could be evicted from the property in question except with the due process of law and issue no. 2 & 6, which was with regards to the as to whether the plaintiffs could be evicted from the property in question except with the due process of law and issue no. 6 pertains to as to what would be the impact of the provisions contained under Section 331 of U.P.Z.A. & L.R. Act over the proceedings, which was chosen to be initiated by the plaintiffs before the Civil Court. Before the learned Trial Court the plaintiffs have only adduced oral evidences and there was not even a single iota of documentary evidence, which was produced by them to show their title over the land in question. Whereas, on the other hand, the defendants too led evidence to show that the land in question was a State's land and the plaintiffs had claimed any title vested in them. 10.30 7. Since it was a Suit, which was initiated by the plaintiffs/appellants the decision rendered on issue no. 6 was in his favour to the effect that the Suit since the Suit there was a claim of decree of permanent injunction and it was not having any element of affecting the title and it was not a decree in the nature of declaration, the suit will not be bared by the provisions contained under Section 331 of U.P.Z.A. & L.R. Act. 8. On this issue learned counsel for the appellants before this Court submits that the Suit in question would have been barred by Section 331 of U.P.Z.A. & L.R. Act and, hence, the decree would be a nullity. This argument of learned counsel for the plaintiffs/appellants at this stage in the Second Appeal is not acceptable for the reasons: (i) The choice of proceedings of filing a Suit was by the plaintiffs/appellants themselves and once they have chosen to invoke the jurisdiction of a Civil Court, they have estopped from questioning the competence of the Civil Court itself. (ii) The submission of the learned counsel for the appellants is that the jurisdiction cannot be conferred upon the Court momentarily. This issue may be alluring but, the fact remains that under the principle of submission once a party to litigation chooses a forum and contest the same on the merit then at a later stage he is estopped from reverting to challenge the competence of the Court. This issue may be alluring but, the fact remains that under the principle of submission once a party to litigation chooses a forum and contest the same on the merit then at a later stage he is estopped from reverting to challenge the competence of the Court. The rationale behind it is that if the judgment had been rendered in his favour he would be candidly accepted it and thus, he would not be permitted to take a reverse stand if the judgment is rendered by the Court, the jurisdiction of which has been invoked by the plaintiff himself. (iii) Thirdly, the issues as framed or based on his pleading to the plaint, i.e. issue no. 6 with regards to the Suit being barred by Section 331 of U.P.Z.A. & L.R. Act, admittedly the said issue has been decided in his favour by the Trial Court and the findings on the said issue has not been challenged in the Appeal preferred against the judgment and decree passed on 28.10.2015. Thus, the argument as raised by the learned counsel for the appellants or the view point of the competence of the Civil Court is not accepted and is turned down by this Court. 9. Apparently, a decree for permanent injunction cannot be granted as against the rightful owner. The nature of decree, which the appellants have sought from the Trial Court in the nature of a restraint as against the State from interfering in the possession, which according to the appellants themselves, there was no document available to them to show their title and they themselves have claimed possession only in that eventuality, the State as already held above would be the owner of the property and no decree of permanent injunction could be granted against the State under the theory of eminent domain. 10. Consequently, this Court is not in agreement with the learned counsel for the appellants. Thus, the Second Appeal fails and is, accordingly, dismissed. This Court is of the opinion that there is no substantive question of law involved in the Second Appeal, which is called for to be answered.