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2019 DIGILAW 1789 (ALL)

Ram Chandra Ji Maharaj v. Union of India

2019-07-25

HARSH KUMAR

body2019
JUDGMENT : Harsh Kumar, J. 1. In compliance with orders dated 1.7.2019 and 18.7.2019, office has informed counsel for respondent-North Eastern Railaway, but still none is present even in revised call. Heard Sri A.N. Bhargava, learned counsel for appellant under Order XLI Rule 11 CPC on the point of admission of appeal and perused the record. 2. The instant appeal has been filed against the judgment and decree dated 18.10.1995 passed by Additional District Judge VIth, Bareilly dismissing Civil Appeal No.109 of 1987, Sri Ram Chander Ji Maharaj Vs. Union of India and confirming the judgment and decree dated 2.4.1987 passed by Trial Court Civil Judge, Bareilly dismissing Civil Suit No.120 of 1972, Sri Ram Chander Ji Maharaj Vs. Union of India for possession. 3. The brief facts relating to the appeal are that plaintiff-appellant filed Civil Suit No.120 of 1972, seeking relief of possession against defendant with allegations that Sri Ram Chander Ji Maharaj Birajman Mandir Tibrinath, Bareilly is the owner of land plot nos.198-M (area 02 Biswas), 206 (area 03 Bighas, 11 Biswas) and 208 (area 18 Biswas) within the municipal limits and North Eastern Railway administration has illegally and unauthorizedly encroached over an area of 02 Biswas of Plot No.198, 15 Biswas of Plot No.206 and 07 Biswas of Plot No.208 total 24 Biswas and did not vacate it, despite sending of a notice under section 80 C.P.C., hence a decree for possession be passed in favour of plaintiff by ejectment of defendant from land shown by letters "A, B, C & E, F, G, H" measuring 24 Biswas with a decree for Rs.500/-. The defendant filed written statement denying the allegations in plaint and contended that land is in possession of Railways since acquisition notified in Gazette Part-I (July to December, 1913), for extending the workshop, which was constructed on the aforesaid 25538 acres land with a pakka boundary wall. 4. The defendant filed written statement denying the allegations in plaint and contended that land is in possession of Railways since acquisition notified in Gazette Part-I (July to December, 1913), for extending the workshop, which was constructed on the aforesaid 25538 acres land with a pakka boundary wall. 4. Learned counsel for appellant submits that learned lower Appellate Court has acted wrongly in holding that on the basis of judgment and decree passed in Suit Nos.119 and 120 of 1978 defendant's right may not be ignored as defendant was not party to that suit and the judgment passed in that case has no binding effect and so the substantial question of law involved in this appeal is "whether the Appellate Court was correct in holding that judgment and decree passed in Suit Nos.119 and 120 of 1978 had no binding effect on defendant". 5. Upon hearing parties counsel and perusal of lower court record which has been summoned, at this stage I find that on parties' pleadings Trial Court framed as many as 08 issues and after evidence of parties in it's findings on issue no.1 it found that out of three plots in question plot Nos.198, 206 and 208, plot Nos.206 and 208 are recorded, as Banjar in revenue records and plaintiff has failed to prove his ownership and title in respect of above plots and has succeeded only in proving his ownership over plot no.198 (area 02 Biswas) out of three plots area 24 Biswas or 1 Bigha 4 Biswas. On issue nos.2 and 3 it held that survey commission was issued for locating the property in suit and as per confirmed report of Commissioner due to vast change in surroundings and due to lapse of long time, no fixed point could be ascertained for locating of disputed plots and execution of survey commission was not possible and could not be executed. 6. In appeal, the Appellate Court also considered all the facts and framed two points of determination for disposal of appeal viz. "1. whether plaintiff is owner of disputed property and 2. whether disputed property is identifiable." 7. 6. In appeal, the Appellate Court also considered all the facts and framed two points of determination for disposal of appeal viz. "1. whether plaintiff is owner of disputed property and 2. whether disputed property is identifiable." 7. In it's findings confirming the findings of Trial Court on issue nos.1, 2 and 3 it held that judgment passed in Case Nos.119 and 120 of 1978, may not be binding on defendant, as defendant-respondent was not party to the case and plot no.198 (area 02 Biswas), of which ownership could be proved by plaintiff, is not identifiable on the spot, because it cannot be located by survey commission due to vast changes in surroundings as per confirmed report of survey commission on record. 8. It is pertinent to mention that Suit Nos.119 and 120 of 1978 were filed by plaintiff before Revenue Officer/Assistant Collector against Naudan Prasad and others in which Union of India-Railway was not party. The copy of judgment in above cases Paper No.24-C on lower court record does not indicate that land in dispute in this case was also subject matter of above case Nos.119 and 120 of 1978 against Naudan Prasad. It is also pertinent to mention that in plaint no period or time of alleged encroachment by defendant-respondent has been mentioned and there is no reply to defence case, by replication or by any reliable evidence by plaintiff-applicant. 9. In view of discussions made above, I have come to the conclusion that above findings by two Courts below are concurrent findings of fact, which are not alleged to be against the evidence on record or perverse. There appears no material irregularity or imprudence in above concurrent findings of fact, which may shock conscience of this Court. The substantial question of law suggested by learned counsel for appellant is not at all involved for consideration in this second appeal. The other questions suggested in the memo of appeal are too general in nature and no other substantial question of law arises or raised. 10. The appeal is dismissed under Order XLI, Rule 11 C.P.C. 11. Interim order, if any, stands vacated. 12. Let the lower court record be sent back to Court below along with a copy of this judgment for necessary action, if any.