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2019 DIGILAW 460 (UTT)

PREM CHANDRA SINGHAL v. STATE OF UTTARAKHAND

2019-08-21

SHARAD KUMAR SHARMA

body2019
JUDGMENT Hon'ble Sharad Kumar Sharma, J. There are certain circumstances, under which, the Court at times is also cornered from taking any particular specific view while adjudicating a lis between the parties and that difficulty is, particularly, faced by the Courts, while exercising its superior power of Appeal, as vested in it under Section 100 of the C.P.C., particularly, when the issue, which otherwise ought to have been a subject matter of determination of the controversy under Section 9 or 96 of Code of Civil Procedure is either not considered by the Trial Court or the Appellate Court, then, while exercising the powers under Section 96 of the C.P.C., in such cases, the Second Appellate Court is constraint that the Second Appellate Court could not have substituted the finding beyond the finding, which has been recorded by the Trial Court or the Appellate Court, while adjudicating a lis, as it is settled law that the Second Appellate Court cannot travel beyond the case as pleaded and argued before the Courts below and, which has been taken into consideration while deciding the case. 2. This is one of those peculiar case, dealing with the peculiar circumstance, which has chanced in the present Second Appeal. Though, this Court despite of being conscious of the fact that the suit itself, which has been instituted by the plaintiff/appellant, herein, being Suit of 1979 was registered as Suit No. 61 of 1979, Prem Chandra Singhal Vs. 2. This is one of those peculiar case, dealing with the peculiar circumstance, which has chanced in the present Second Appeal. Though, this Court despite of being conscious of the fact that the suit itself, which has been instituted by the plaintiff/appellant, herein, being Suit of 1979 was registered as Suit No. 61 of 1979, Prem Chandra Singhal Vs. State of U.P. and others, which was instituted as back as on 10th March, 1979, wherein, the plaintiff/appellant has sought a relief in the nature of a decree of mandatory injunction as against the defendants/respondent, herein, to the effect that by the decree to be rendered by the Court, they may be evicted from the property, in question, and after the removal of the construction, which has been raised by the defendant/respondents, over the dispute land, they may also be directed to hand over with the vacant possession of property, which as per the plaint averments is shown to be detailed in appendix-2, in the description of the property as given in the plaint, which the plaintiff/appellant claims to have acquired his rights over it, in pursuance to the sale deed dated 8th March, 1977, executed and registered in his favour, wherein, he contends that he has purchased a piece of land, lying in khasra No. 71/3, having an area of 3350 square yard, i.e. equivalent to about 0.69 acres situated in village Rishikesh, Pargana Parwadoon, Dehradun. The boundaries of the property in dispute for which the relief was sought by way of a suit for mandatory injunction was described at the foot of the plaint, which is quoted hereunder :- ßHkwfe/kjh dh Hkwfe dk ,d VqdMk] Hkwfe [k.M [kljk uEcj 71@3 feutqeyk] 3350 oxZxt vFkkZr 0-69 ,dM fLFkr xzke _f'kds"k] ijxuk] ijoknwu] ftyk nsgjknwu ftldh pkSgnh fuEu izdkj gS & iwoZ & vU; Hkwfe [kUM fodzsrk x.k loZJh Loa;cj nRr] lR; izlkn og gjh izlknA if"pe & _f'kds"k eqfu dh jsrh dh lMdA mÙkj & pUnz Hkkxk unhA nf{k.k & lMd vkeAÞ 3. It was the case of the plaintiff/appellant in the suit, that it was the property, which was falling to be within the area of the property, which was purchased by him by the sale deed dated 8th March, 1977, under the strength of which, he contends that the sale deed, which was executed in his favour on 08.03.1977, it was based on the agreement for sale, which was executed by the predecessors/owners in favour of the plaintiff/appellant on 4th March, 1977, and as a consequence of the execution of the sale deed, he was placed in possession over the property, in question. The case of the plaintiff/appellant in the Suit, was that when he was out of town in relation to his business purposes and when he returned back on 9th March, 1979, he found that the construction of Export Forest Chowki was put under construction at the behest of and on instruction of the defendants/respondents and that gave him a cause of action to institute the Suit before the learned Trial Court for grant of the decree of the following nature:- ßd& fookfnr Hkwfe ij izfroknhx.k }kjk fd;s x;s fuekZ.k dks rqMok;k tkos rFkk mldks iwoZ fLFkfr esa yk;k tkos rnFkZ leqfpr vkns"kkKk ;k tSlk U;k;ky; Bhd le>s tkjh dh tkosA vFkok oknh dks fookfnr Hkwfe ij iwoZ fLFkfr esa dCtk fnyk;k tk;s rnFkZ leLr vko";d dk;Z ;Fkk izfroknh dk fu.dklu] fuekZ.kksa dks rqMokuk vkfn djk;s tk;sA [k& LFkk;h fu'ks?kkKk }kjk izfroknhx.k dks fookfnr Hkwfe ij oknh ds LokfeRo vè;klu esa Lo;a ;k vius fdlh dk;ZdrkZ] O;fDr Bsdsnkj vkfn }kjk fdlh izdkj dk gLr{ksi djus ls fuf"k} fd;k tk;sA x& okn O;; rFkk vU; izfrdkj tks Jheku th Bhd le>sa fnyk;k tkosAÞ 4. The pleadings of the suit, in question, as instituted on 10th March, 1979, was supported with the plaint map, which was filed along with the plaint, wherein, the property in dispute was described by figure ka, kha, ga, gha as to be the suit property, which as per the plaint map, is shown to be constituting to be part and parcel of the property lying in khasra No. 71/3, which the plaintiff/appellant claims to have purchased the same by virtue of the sale deed as referred above. 5. 5. The plaint averments were denied by the defendants/respondents, herein, by way of filing a written statement on 27th April, 1979 and, particularly, a reference may be had to the contents of the para 8, 12 and 13 of the written statement, where a plea was raised by the defendants/respondents to the effect that the property, in dispute, over which, the construction was being raised was a property, which was lying under the ownership of the State Government in view of the its current location from the centre of the road and it was within 110 feet from centre of the road, which falls to be within the prescribed limits in accordance with the provisions as contained under the U.P. Road Side Land Control Act. The defendants/respondents case was further that the construction of Export Forest Chowki, which was being raised by the defendants/respondents over the property, in question, cannot be faulted with for the reason that it was being raised on a piece of land, on which, there pre-existed the old Export Forest Chowki earlier, apart from it, and now the construction, which is being carried on, in fact, was rather constructed after the sanction granted by the Executive Engineer vide his letter dated 17/XII-1 dated 01.01.1976 and it was contended by the defendant/respondent that after the sanction granted by the Executive Engineer, the contract for the purposes of construction of the Export Forest Chowki was granted to the Contractor and the foundation for construction was raised as back as on 26th February, 1979, on the same old piece of land, on which, earlier Export Forest Chowki, existed and the construction was proceeding, when the suit, in question, was instituted by the plaintiff/appellant on 10th March, 1979. 6. On an overall scrutiny of the written statement, the basic line of defence of the respondent was on the ground that since the land, in question, over which, the construction was being raised was well within the ambit of the parameters provided under the U.P. Road Side Land Control Act, the plaintiff/appellant as such cannot claim any right over it. On an overall scrutiny of the written statement, the basic line of defence of the respondent was on the ground that since the land, in question, over which, the construction was being raised was well within the ambit of the parameters provided under the U.P. Road Side Land Control Act, the plaintiff/appellant as such cannot claim any right over it. Hence, the Suit would not be tenable because no right and title was vested with the plaintiff/appellants and furthermore, it was contended that the suit itself was bad on account of non compliance of the provisions contained under Section 80 of the C.P.C., as no prior notice was served on the defendants/respondents prior to the institution of the Suit that too in relation to the land, which fell under the domain of the provisions of U.P. Road Side Land Control Act. 7. In response to the written statement, a replication was preferred by the plaintiff/appellant and, particularly, a reference may be had to para 8 of the replication, which reads as under :- “8. That the defendants have constructed an Export and Check Chowki within 110 feet from the centre of the road. The said area is the property of the State of Uttar Pradesh." 8. It was submitted by the plaintiff/appellant that on 2nd May, 1979 by filing the replication, wherein, the plaintiff had specifically come out with the case that the averments made in para 8 of the written statement pertaining to the implication flowing from the U.P. Road Side Land Control Act, that would not be applicable because as per the interpretation given by the plaintiff/appellant pertaining to the effect of the enforcement of the U.P. Road Side Land Control Act would be that the Act itself provides for that a space of 220 feet in all from centre of the road should be left open from centre of it, i.e. 110 feet on either side and no construction could have been raised in between that specified space. But, the most unfortunate part is that even after the exchange of the pleadings between the parties and after conducting of the Commission for the purposes of identifying the location of the property, over which, the construction of the Export Forest Chowki was proposed to be raised by the defendants/respondents, the learned Trial Court has proceeded to frame the issue and the issues under Order 14 of C.P.C. as framed by the learned Trial Court was to the following effects :- ß1& D;k oknh fookfnr Hkwfe dk Lokeh gS\ ;fn gkW rks izHkkoA D;k fookfnr Hkwfe dks flok; jkLrs ds vU; iz;ksx esa ugha yk ldrs\ 2 & D;k izfroknh la- 2 o 3 us mDr Hkwfe ij vfrØe.k dj voS/k fuekZ.k dj fy;k gS\ ;fn gkW rks izHkkoA 2, & D;k izfroknh }kjk dfFkr fuekZ.k lnHkkouk ls fd;k x;k gS\ 3& D;k okn dk ewY;kadu de fd;k x;k gS vkSj vi;kZIr U;k; “kqYd vnk fd;k gS\ 4& D;k okn esa /kkjk 80 dk uksfVl u nsuk okn dks vojkf?kr djrk gS\ 5& vuqrks'kAÞ 9. Unfortunately, as per the pleading of the plaint and though despite of the pleading of defence raised in para 8 of the written statement by the defendants/respondents and in para 8 of the replication, with regard to the effect of the location of the property, whether it falls to be within the ambit of the restriction provided under U.P. Road Side Land Control Act, but there was no issue was ever as such framed to be determined by the Trial Court based on the rival pleadings and evidence raised by the parties to the suit. However, the Suit proceeded and the same was decreed in favour of the plaintiff/appellant by the judgment dated 19th December, 1981. 10. Being aggrieved against the decreeing of the suit, the defendants/respondents preferred a Civil Appeal No. 17 of 1982, State of U.P. Vs. However, the Suit proceeded and the same was decreed in favour of the plaintiff/appellant by the judgment dated 19th December, 1981. 10. Being aggrieved against the decreeing of the suit, the defendants/respondents preferred a Civil Appeal No. 17 of 1982, State of U.P. Vs. Prem Chandra Singhal and the Appellate Court while allowing the appeal by the judgment dated 27th March, 1995, has yet again not formulated any point of determination, while exercising its power under Order 41 Rule 31 or by framing of any additional issue while exercising its powers under Order 41 Rule 25, which emerged for consideration, based on the rival pleadings raised by the parties to the Suit rather the appellate Court has proceeded to allow the Appeal of defendant/respondent by the judgment dated 27th March, 1995. The said judgment of the first Appellate Court allowing the Appeal was made subject matter of scrutiny at the behest of the plaintiff/respondents by filing a Second Appeal before this Court, being Second Appeal No. 1265 of 2001, Prem Chandra Singhal Vs. State of U.P. and others, which after its institution before Allahabad High Court on its transferred was renumbered as such, earlier older number was Second Appeal No. 120 of 1995. 11. The Co-ordinate Bench of this Court while considering the Second Appeal No. 1265 of 2001, on its merit and in particular, the substantial question of law, which was framed while admitting the Appeal, which finds reference in para 9 of the said judgment dated 11.09.2006 of the Coordinate Bench of this Court. “9. At the time of admission of the appeal, the following substantial question of law have been framed:- 1. Whether the absence of any pleading, evidence and issue on the question of applicability of Road Side Control Act, the appellate court was justified in recording finding in that regard? 2. Whether the finding of the appellate court as regards to the applicability of the Road Side Control Act, in absence of any construction on the part of the plaintiff/appellant is against the provisions of law?" 12. All the substantial questions on which Second Appeal was to be heard, it was in relation to the implications, which would be flowing in relation to the controversy in question, it was flowing from the provision of the U.P. Road Side Land Control Act. All the substantial questions on which Second Appeal was to be heard, it was in relation to the implications, which would be flowing in relation to the controversy in question, it was flowing from the provision of the U.P. Road Side Land Control Act. While answering the aforesaid substantial question, the Second appellate Court had held that the finding, which has been recorded by the impugned appellate order under challenge before the second appellate court, as rendered on 27th March, 1995, by the 2nd Additional Civil Judge, Dehradun, it is based upon the consideration pertaining to those aspects, which was not even a subject matter of consideration by the Appellate Court nor there was any point of determination under Order 41 Rule 31 of CPC nor any additional issue was framed as per Order 41 Rule 25 by the Appellate Court, on which, the finding has been recorded, which has been taken as to be the basis for allowing the Appeal and, consequently, dismissing the suit. 13. Since, the Appellate Court has travelled beyond the scope of the pleadings of the rival parties in the proceedings before the First Appellate Court as decided by the judgment dated 27th March, 1995, the Second Appellate Court while considering the Second Appeal vide its judgment dated 11th September, 2006, has remitted the matter back to the First Appellate Court to decide it afresh in accordance with law and particularly, a direction was issued that the Appeal was to be decided the case within a period of three months after taking into consideration the fact that the suit happens to be of 1979. “15. The lower appellate court was not justified in recording the findings with regard to the question of applicability of Road Side Control Act in absence of any pleading, issue or evidence, available on record. There could not also be any application of Road Side Control Act, in absence of the pleading, issue of evidence of any construction on the part of plaintiff/appellant. 16. Accordingly the aforesaid issue requires re-consideration, and the matter is remanded back to lower appellate court to decide the matter in accordance with the evidence available on record. The first appellate court shall consider the aforesaid factual aspects in detail and then decide the first appeal after affording an opportunity of hearing to the parities. 17. 16. Accordingly the aforesaid issue requires re-consideration, and the matter is remanded back to lower appellate court to decide the matter in accordance with the evidence available on record. The first appellate court shall consider the aforesaid factual aspects in detail and then decide the first appeal after affording an opportunity of hearing to the parities. 17. In the result the appeal is liable to be allowed and the judgment and order passed by lower appellate court is set aside. The matter is remanded back to the first appellate court to decide it afresh in accordance with law as well as the observations made in the body of judgment. As the matter relates to the year 1979, the first appellate court shall decide the appeal within a period of three months by taking the matter on priority basis. The record of the court below be returned immediately." 14. As a consequence of the order of remand dated 11th September, 2006, the proceedings before the First Appellate Court revived back by way of Appeal No. 17 of 1982, the number, with which, it was initially numbered and yet again, the First Appellate Court without considering the parameters of remand, as it finds in reference in para 8 of the judgment, which is impugned now, i.e. dated 23rd January, 2015. ß8- fo}ku voj U;k;ky; }kjk fook/kd iz'u Øekad&1 bl vk'k; dk fojfpr fd;k x;k Fkk fd&Dk oknh fookfnr Hkwfe dk Lokeh gS\ ;fn gka] rks izHkkoA D;k fookfnr Hkwfe dks flok; jkLrs ds vU; iz;ksx esa ugha yk ldrs\ ekuuh; mÙkkjk[k.M mPp U;k;ky; uSuhrky }kjk f}rh; vihy esa blh fook/kd iz'u Øekad ij cy nsrs gq, ;g vfHkfu/kkZfjr djus gsrq bl vihy U;k;ky; dks funsZf'kr fd;k x;k gS fd bl iz'u dk fu/kkZj.k fd;k tk;s fd D;k fookfnr lEifÙk izR;FkhZ@oknh fd gS ;k vihykFkhZ@izfroknh jkT; ljdkj dh gS\ vr% ekuuh; mPp U;k;ky; uSuhrky] }kjk funsZf'kr mDr iz'u ds vkyksd esa fjek.M }kjk izkIr bl vihy dk iqUk% fuLrkj.k fd;k tk jgk gSAÞ 15. The First Appellate Court has yet again confined its determination on questions, yet again only pertaining to firstly the ownership of the property, in question and secondly, as to whether the disputed land could be utilized exclusively for the purposes of the road and not for the purposes of construction of the Export Forest Chowki. The First Appellate Court has yet again confined its determination on questions, yet again only pertaining to firstly the ownership of the property, in question and secondly, as to whether the disputed land could be utilized exclusively for the purposes of the road and not for the purposes of construction of the Export Forest Chowki. What is surprising is that though there have been a specific finding recorded by the Second Appellate Court in its judgment dated 11th September, 2006 regarding the bone of contention, yet again, the First Appellate Court on remand of the matter by judgment dated 11.09.2006, has not taken into consideration the impact pertaining to the provisions contained under the U.P. Road Side Land Control Act, and yet again has allowed the Appeal by the impugned judgment dated 23rd January, 2015, resulting into to the consequential dismissal of the Suit No. 61 of 1979, Prem Chandra Singhal Vs. State of U.P. and others. 16. Though this Court being conscious that it owes a honorous responsibility to have decided the lis, which is being agitated by the plaintiff/appellant as against the First Appellate Court's order dated 23rd January, 2015, on its own merits, because the lis itself has been initiated by way of Suit No. 61 of 1979 Prem Chandra Singhal, Vs. State of U.P. and others, which was instituted way back on 10th March, 1977. But, on account of the procedural flaw, which has been committed by the First Appellate Court, the First Appellate Court apart from the fact that it has not formulated the point of determination, while exercising its power under Order 41 Rule 31, has yet again confined its determination on the question of title, on the question of use of the land as observed in para 8 of the impugned judgment, but no question particularly as such has been framed with regard to the parameters, which was considered by the Second Appellate Court in its judgment dated 11th September, 2006, with regard to the pleading raised by the rival parties, which was arising out of the implications flowing from the U.P. Road Side Land Control Act, there was no issue or point of determination framed on it. If the said point of determination was not framed in either stage of the proceedings before the Trial Court or before the Appellate Court, and if in the absence of there being any point of determination as such, on the said issue, if the Court proceeds to decide a lis between the parties by enforcing the implications of the Act, which was not a case within the ambit of consideration placed before the First Appellate Court, it would amount to that the First Appellate Court, which is the last Court of determining the facts and law has travelled beyond the pleadings of the respective parties, which though existed on the record but it was not laid down as a point of determination or as an issue, on which, the finding was to be returned by the First Appellate Court. The First Appellate Court yet again has not considered the matter after framing an issue pertaining to the application of U.P. Road Side Land Control Act. 17. It is pathetic to record a finding that the lis is being kept lingering since 1979 on account of the procedural error committed by the Courts. In these circumstances, where the Court fails to formulate a point of determination and in the absence of the said point being framed, which is the basis of the judgment based on the finding which is recorded in the absence of there being an issue formulated, it would amount to that the parties to the proceedings were not provided with an opportunity to answer their plea with regard to issue, without an issue being framed or by the point being formulated by the Court while deciding a lis. Thus deciding a case on the determining of certain aspect without framing any issue on it is dehorse to the process of law. 18. In these circumstances, this Court while exercising its Second Appellate power under Section 100 of C.P.C. answers the substantial question of law as framed by the appellant with regard to the application and implication of the U.P. Road Side Land Control Act over the controversy at hand and based on which the Second Appeal was admitted, particularly on substantial question of law No. 2 as formulated on 15th June, 2015. The Second Appellate Court cannot substitute the finding with regard to the effect of the application of said U.P. Road Side Land Control Act, under Section 100 of the C.P.C. by giving its finding because the appreciation of its applicability of the Act, it will be based upon the determination of the facts and evidence to be adduced by the parties in relation to it. If no such issue as framed despite of High Court judgment dated 11.09.2006, it would render the judgment impugned dated 23.01.2015 rendered on remand as to be perverse and without opportunity and application of judicious acumen. 19. In that view of the matter, since there was no point of determination framed even after the order of remand passed by this Court on 11.09.2006, this Court has got no option except to allow the Second Appeal and set aside the impugned order passed by the First Appellate Court dated 23rd January, 2015 with the direction to the First Appellate Court that on revival of the proceedings, the First Appellate Court will exercise its power in the following manners :- i. The First Appellate Court would determine the point of consideration while exercising powers under Order 41 Rule 31 of the C.P.C. ii. The point of determination has to be made in the light of the implication of the U.P. Road Side Land Control Act, which was a subject matter of consideration in the earlier order of remand as rendered by this Court in its judgment on 11th September, 2006. iii. The Appellate Court would also consider thereafter as to whether at all the plaintiff has got a right and title in relation to the property, in question, to institute a suit for injunction and decide the matter afresh, strictly within a period of three months from the date of production of certified copy of the order, keeping in mind that the Suit itself happens to be of 1979. 20. Subject to the above observation, the Second Appeal is allowed, the impugned judgment dated 23.01.2015, as rendered in First Appeal No. 17 of 1982, State of U.P. (Now Uttarakhand) Vs. 20. Subject to the above observation, the Second Appeal is allowed, the impugned judgment dated 23.01.2015, as rendered in First Appeal No. 17 of 1982, State of U.P. (Now Uttarakhand) Vs. Prem Chandra Singhal is set aside and the matter is remitted back yet again to the First Appellate Court to decide the Appeal afresh after formulating the questions in view of the finding, which has been recorded by the earlier order of remand dated 11th September, 2006, as rendered by this Court in Second Appeal No. 1265 of 2001 (Old No. 120 of 1995) as well as today's judgment in relation to the effect of the effect and implication of the U.P. Road Side Land Control Act, over the dispute, in question. The Appeal itself will be decided positively without any unnecessary adjournments to either of the parities, within a period of three months from the date of production of the certified copy of the order. The plaintiff/appellant would ensure to produce the copy of the judgment before the First Appellate Court within a week from the date of receipt of the certified copy of this judgment from the Registry.