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2021 DIGILAW 239 (UTT)

Garhwal Mandal Vikas Nigam Ltd v. Raghunath Das

2021-04-12

SHARAD KUMAR SHARMA

body2021
JUDGMENT Sharad Kumar Sharma, J. - The appellant before this Court, is a defendant in the Original Suit, being O.S. No.415/1992, "Raghunath Das vs. Garhwal Mandal Vikas Nigam Ltd.", whereby the Original Suit No.415/1992, "Raghunath Das vs. Garhwal Mandal Vikas Nigam Ltd.", which has been preferred by the plaintiffs/respondents, for the grant of decree of permanent injunction, mandatory injunction and eviction, was decreed by the court of Civil Judge, (Senior Division)/ FTC 6, Dehradun, by one of the impugned order and judgment dated 29.05.2001, which is presently under challenged before this Court. The aforesaid judgment, which was rendered by the trial court, was subsequently put to challenge in civil appeal, being Civil Appeal No.86/2001, "Garhwal Mandal Vikas Nigam Ltd., vs. Raghunath Das" and the same too had met with the same destiny, resulting into the dismissal of the appeal vide judgment and order dated 20.03.2018, which was passed by court of learned 2nd Additional District Judge, Dehradun. Hence, the present second appeal has been preferred before this Court. 2. The precise fact, which engages consideration before this Court in the present second appeal is that the plaintiffs/respondents, herein, as per the plaint averments has submitted that they are the purchaser of the property, having purchased the same from its predecessor owner Harbansh Kaur, by virtue of the registered sale deed dated 08.07.1970, and on the southern part of the land in question, there exists a 25 feet wide passage, which was alleged in the plaint to be utilized by the plaintiffs, by way of an easementary rights for their ingress and egress for quite a sufficient long period. 3. The cause of action as contended by the plaintiff/respondents, to institute the suit was contended to have arisen on the ground that the defendants have started raising a construction by encroaching upon the pathway in question by raising a wall and thus they would be creating an obstruction in the use of the passage. Hence, the suit in question was filed with a prayer that the defendants may be directed to demolish the wall and also not to wrongfully interfere into the peaceful possession of the property in question, which was conveyed to the plaintiffs/respondents by virtue of the sale deed dated 08.07.1970. Hence, the suit in question was filed with a prayer that the defendants may be directed to demolish the wall and also not to wrongfully interfere into the peaceful possession of the property in question, which was conveyed to the plaintiffs/respondents by virtue of the sale deed dated 08.07.1970. Apart from it, a decree for damages, which was also claimed to be paid @50 per month, with effect from 01.09.1992, till the date of the actual handing over of the possession i.e. the date when the cause of action of a wrongful interference has occurred. 4. What is surprising, is that if the written statement, which was preferred by the present defendant/appellant, before the court below, is taken into consideration, they have come up with the case that the plaintiffs/respondents, who were claiming their rights over the disputed 25 feet wide passage, in fact, it is a land which is lying in Khasara No.47, of "Village Jakhan, District Dehradun", and it is only a part of it, and as per the "Khatauni" entries made in the revenue records, the land is said to have been recorded with the State Government. It was further contended that as far as the Khasara No.32 is concerned, having an area of 5.38 acres of land, and Khasara No.47, having an area of 4.08 acres of land, of the aforesaid village is concerned, is an had been in the possession of the Mussoorie Dehradun Development Authority (in short "MDDA"), and out of the aforesaid land, a part of it had been claimed to have been handed over to the Garhwal Mandal Vikas Nigam Ltd., and it was claimed that they were placed it possession over the said land by the MDDA. The further defence which has been taken by the defendant/appellant, was that the construction of the wall on the so-called land, which was transferred over by the Nagar Nigam, Dehradun, to the defendant/appellant, herein, is concerned, they have contended that they were raising the construction over it, after getting its approval of the map from the Development Authority i.e. MDDA and hence it was argued that there was no anomaly in the action taken by the defendant/appellant, in raising the wall over the disputed property, which was the property, which was the subject matter of the suit. They further submitted in their pleadings that as far as the plaintiffs/respondents are concerned, the plaintiffs/respondents has got no rights over the disputed property in question for the reason being that the Nagar Nigam, Dehradun, became the owner of the property, as having being vested with it w.e.f. 07.07.1949, and prior to it, the said property never constituted as to be a part and parcel of the property belonging to the Nagar Nigam, Dehradun. They have further raised several rivals contentions, including the contention that the property in question stands vested with the State Government, with effect from 01.07.1952, as a consequence of the promulgation of the provisions contained under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (in short "UPZALR Act") as made applicable over the disputed land on 01.07.1952, and particularly, the reference was made to Section 4 of the said Act, vesting the property to the State. 5. The learned Trial Court based on the aforesaid pleadings had formulated the following points in issues:- 6. The parties to the proceedings, and particularly, the plaintiffs/respondents, have placed on record the documents in evidence, by way of list Paper No.110 (ga), and has also adduced the oral witness of PW 1 and PW 2. On the contrary, the defendant/appellant, has also adduced its evidence by placing on record the documents by way of list no.16 (ga), and in support thereto, besides this various others documents were relied with, by the defendant/appellant, including the recording of the oral testimony of the defendants witnesses as DW 1 Ramratan, DW2 Dinesh Kumar Gusain and DW 3 Rajendra Prasad, in order to substantiate their claim. 7. Primarily; as far as this second appeal is concerned, the learned Counsel for the appellant/defendant, had harped upon two questions which had been sought to be answered by way of substantial question (1) To the effect that, what would be the impact of the recording of the statement on behalf of the plaintiffs/respondents, through his attorney? (2) As to that, what would be the effect of the nonidentifiability of the land in relation to which a decree for the grant of a decree of permanent injunction was sought for by the plaintiffs/respondents before the court below. 8. (2) As to that, what would be the effect of the nonidentifiability of the land in relation to which a decree for the grant of a decree of permanent injunction was sought for by the plaintiffs/respondents before the court below. 8. He further submits that the effect of other co-related litigation, which was held between the other parties, what impact and bearing would it have over the proceedings of the present suit. In fact, if the findings, which have been recorded by the learned Trial Court are scrutinized and are taken into consideration, particularly, the findings which had been recorded relating to Issue No.1, it is and has come on record that as per the written statement, it is an admitted case, of the defendant/Appellant, that the Nagar Palika for the first time has come into existence only with effect from 07.07.1949 and prior to it, the property in dispute, never stood vested, with the municipality and besides this the impact of vesting of the property, has also been taken into consideration, in view of the effect of the notification issued on 30.06.1952, which shows that the property has been recorded as "Banjar" and with the enforcement of the UPZALR Act, the benefit of which was sought to be derived by the defendant/appellant, in relation to the property which was detailed in the statement it shows that it was lying in Khata Khatauni 9 (ga) and 20 (ga) and Khasara numbers mentioned therein in relation thereto i.e. Khasara Nos. 23, 24, 25, 31, 32/1, 32/2, 47, 37, 40 and 46, which the defendant/appellant, has contended that it was the property, which was vested with the State Government. He further submitted that in the written statement that as far as the property lying in Khasara No.32 and 47, are concerned, they are recorded as "Banjar" and its records shows the existence of the passage over the said property. However, the learned Trial Court while recording its findings; after consideration of the evidence on record, had come to the conclusion, that as far as the disputed land is concerned, its predecessor owner who was one Mr. Ram Ratan, had sold the property by virtue of the sale deed dated 14.07.1947, to one Mrs. However, the learned Trial Court while recording its findings; after consideration of the evidence on record, had come to the conclusion, that as far as the disputed land is concerned, its predecessor owner who was one Mr. Ram Ratan, had sold the property by virtue of the sale deed dated 14.07.1947, to one Mrs. Harbansh Kaur, and thereafter the said property was subsequently conveyed to the predecessors in interest of the plaintiffs/respondents, and hence after considering the certified copy of the sale deed, which was placed on record by way of Paper No.24/28 (ga), the learned Trial Court, has held that the old possession and user of the property, for the last over about 20 years, is the fact which had been established by the plaintiff/respondents, by way of an evidence on record. Apart from the oral statement which was recorded by the plaintiffs/respondents, the evidence of PW 1 Jeevan Lal. The Trial Court has consequently, recorded a finding that based on the basis of the sale deed dated 14.07.1947, which was a deed admittedly executed prior to the enforcement of the UPZALR Act, and hence the conclusion which has been appropriately drawn by the learned Trial Court, was that as a consequence of the embargo created by Section 4 of the UPZALR Act, all the properties which was a subject matter of the registered deed of conveyance executed prior to the enforcement of the UPZALR Act, would never constitute to be a property, which stands divested with the State under Section 4 of the Act, and consequently, the plaintiffs/respondents were held to be the exclusive owner over the property right from the instance of their predecessor owner with effect from 1947. 9. 9. If the findings, which have been recorded by the learned Trial Court on the remaining issues are concerned, particularly, pertaining to the Issue Nos.4 and 10, about the impact of Section 52 of the UPZALR Act and about the identifiability of the land contending thereof that the aforesaid passage is not in existence on the spot in question, the learned Trial Court has recorded and returned the finding that as per the map which was placed by the plaintiffs/respondents on record and the statements recorded by their witnesses, the sale deed Paper No.9 (Ka) and 24/8(ka), and the map annexed with it, depicts that the property and its existence and its user as to be the passage of 25 feet wide with clearity, which was being utilized for the said purposes for the last over two decades. 10. Accordingly, the learned Trial Court had decided the issue about the identifiability of the property in favour of plaintiffs/respondents, on the basis of unassailed deed of conveyance, which was legally in existence prior to the enforcement of the UPZALR Act, which itself was admittedly enforced, in the area by the notification of 30.06.1952. In that view of the matter, the learned Trial Court, has yet again recorded the finding that the identifiability of the disputed property cannot be a subject matter, because the same was proved by the plaintiffs/respondents, by producing evidence on record. The learned Trial Court based on the aforesaid rationale and consideration of the evidence on record, and particularly, the revenue entries which was recorded, and placed on record by the parties to the proceedings, had concluded that the revenue entries shows that the land though stands recorded, but that will not have any bearing over the proceedings in question because of the unassailed deed of conveyance and the findings which have been recorded on Issue No.1, on account of their utter failure, on part of the defendant/appellant, to substantiate that the property was not being utilized as a passage and its an absolute failure on part of the defendant/appellant, to establish beyond doubt by evidence that the property stood vested with the State Government in view of the impact of Section 4 of the UPZALR Act, even in relation to the property which were conveyed prior to the notification of 30.06.1952, enforcing U.P.Z.A and LR Act, over the area or village in question. 11. 11. On a challenge being given to the judgment of the trial court before the Appellate Court, for the first time, the question which was raised by the defendant/appellant in the appeal was with regards to the impact of recording of the statement by the plaintiffs/respondents, before the learned court below, through attorney. But, if the findings recorded before the Appellate Court itself are taken into consideration, as far as the impact of recording of the statement by the plaintiffs/respondents in the proceedings before the learned trial court through its attorney is concerned, the same was not attempted to be substantiated by him by producing any independent evidence or even arguments before the learned court below or by placing the attorney itself on record, in order to scrutinize its expanse of vesting of powers to the attorney holder to the present cause of the plaintiff/respondents in the proceedings before the court below. 12. I am of the view that as far as the said argument of the learned counsel for the defendant/appellant is concerned, once he has raised a question that the attorney holder couldn't have deposed on behalf of the plaintiffs, himself, has not produced himself in the witness box, it was a burden which was supposed to be discharged by him by placing the attorney on record, in order to enable the appellate court even to scrutinize, as to whether the aforesaid attorney, which was executed by the plaintiff/respondents, in favour of their attorney holder, whether it included within it the powers vested with the attorney holder, even to depose on behalf of the plaintiff/respondent, because the implications of authority vested with the attorney holder; as per the opinion of this Court would always depend upon the covenants contained in the deed of attorney itself, and that was not the burden, which was ever attempted to be discharged by the defendant/appellant, even at the appellate stage itself. Hence, this question about the impact of recording of the witnesses by the plaintiff/respondent through its attorney is decided against the defendant/appellant. 13. Hence, this question about the impact of recording of the witnesses by the plaintiff/respondent through its attorney is decided against the defendant/appellant. 13. Secondly, he has submitted that the property was not identifiable and this was a question, which was even raised by him before the learned Trial Court, which was though had been decided by the learned Trial Court itself, but at an appellate stage in Paragraph no.12 of the said judgment in appeal, is taken into consideration, on which the reliance has been placed by the learned counsel for the appellant/defendant with regards to the orders passed by the Appellate Court on 12.09.2005, directing to conduct a survey commission and in relation thereto, few documents have been placed on record i.e. Paper No.48 (c) and 49 (c) (2), but as per the aforesaid documents on record, it was argued that no survey commission could be conducted by the "Superior Kanungoo", on account of the incessant rain and that being the situation, it cannot be presumed that ever since passing of an order on 12.09.2005, and till the date of adjudication of the appeal itself i.e. on 20.032018, the aforesaid natural contingency, on account of the incessant rain still persisting, due to which the survey commission could not be conducted in order to enable the defendant/appellant to identify the property, which was the subject matter of the dispute. In fact no attempt was made by defendant/appellant for ensuring the conduct of survey commission, which was already directed on 12.09.2005. 14. Even otherwise also, this argument of non identifiability of the property, apart from the fact that it has been specifically dealt by the both the courts below, concurrently, but still that the defendant/appellant cannot be given the advantage of his own inaction. Inaction in the sense, that it was his application, on which the commission was directed to be conducted and its failure to conduct the commission on account of the natural difficulties, as dealt in paragraph no.12 of the appellate court's judgment. Inaction in the sense, that it was his application, on which the commission was directed to be conducted and its failure to conduct the commission on account of the natural difficulties, as dealt in paragraph no.12 of the appellate court's judgment. In that eventuality, it was not that the defendant/appellant was left remediless, ever since then, till the culmination of the proceedings by the appellate court's by the judgment dated 20.03.2018, and there is nothing on record to the contrary, as such, to show that for the purposes of enforcement of the order dated 12.09.2005, till the decision in the appeal itself on 20.03.2018, the defendant/appellant had ever made any efforts to get the survey commission conducted in order to eradicate the alleged controversy, which was agitated by him pertaining to the identifiability of the land, which is otherwise the finding, which was concurrently recorded against him by both the courts below. 15. Even if the memorandum of appeal itself is taken into consideration, the defendant/appellant rights are urged and argued to have flown from handing-over of the property to the Garhwal Mandal Vikas Nigam, from the Nagar Palika, Dehradun. This contention has been yet again remains unsubstantiated, because in the absence of there being any documents on record placed by defendant/appellant, in evidence of vesting over of the property by the Nagar Palika, Dehradun to the Garhwal Mandal Vikas Nigam. It cannot be conclusively said that the property and its precincts, which was handed over, was attempted to be established by the defendant/appellant by way of any evidence, which was adduced before the court below to show that specific portions of the "Khasara numbers" as already dealt with above, was ever vested with the defendants/appellants. This contention is further fortified from the fact that if the averments made in paragraph no.37, is taken into consideration, which is referred hereunder:- "37. This contention is further fortified from the fact that if the averments made in paragraph no.37, is taken into consideration, which is referred hereunder:- "37. That there is another aspect of the matter that in the year 2005 that the State Government came into know about the orders passed by the learned Trial Court had preferred the Appeal No.86/2005 alongwith an application of the Delay Condonation and the said Delay Condonation Application has been dismissed and consequently the appeal was dismissed by IInd Additional District Judge, Dehradun vide order dated 27.01.2008 totally ignoring the issue that it was a categorical case that the interest of the State Government is also involved in the case and when the State Government have preferred an Appeal, and further the said Court was under in obligation to hear the appeal on merit filed by the Garhwal Mandal Vikas Nigam Ltd., the appeal of the State Government should not have been rejected only on the ground of Delay, however taking in absolutely hyper technical approach the learned Appellate Court has rejected the appeal preferred by the State Government." 16. The State's Appeal being Appeal No.86 of 2005, against the judgment of trial court, has been dismissed on the ground of delay and the said judgment of the Additional District Judge dated 27.01.2008, has attained finality. As it had not been further challenged before any superior court. The reference of paragraph no.37, to the stay application, becomes relevant to be considered at this stage for the reason being that once the defendant/appellant, has argued the impact of vesting over of the property under Section 4 of the UPZALR Act, with the State Government, though it was an aspect, which has already been dealt with by both the courts below, but in fact it was that the State, itself has submitted to the dismissal of the first appeal and has not challenged the same before the superior court. Then in that eventuality, whatsoever the rights would flow to the Nagar Nigam, would always be flowing with the right which were having with the State Government, under Section 4 of the UPZALR Act and since that was not a case, which was developed or proved before the court below. Then in that eventuality, whatsoever the rights would flow to the Nagar Nigam, would always be flowing with the right which were having with the State Government, under Section 4 of the UPZALR Act and since that was not a case, which was developed or proved before the court below. Now at this stage, the defendant/appellant cannot take contrary stand that the property was vested with it by handing over it to by the Nagar Nigam, Dehradun, which was a fact not established, concurrently before both the courts. 17. Apart from it, if the substantial question of law, which has been framed by the defendant/appellant before this Court, in the present second appeal, which has sought to be answered, so far as the issue it relates to the identifiability of the land, it has already been answered above, so far it relates to the enforcement of the UPZALR Act, that too has already been dealt with above. Apart from it, the question of impact of the attorney recording the statement on behalf of the plaintiffs/respondents is not the substantial question of law, which has been framed, but since it has been argued by the appellant's counsel, it has been dealt with by this Court. Hence, as per the opinion of this Court, this second appeal doesn't entail consideration of any substantial question of law as its concluded by concurrent findings of facts, and the same is accordingly dismissed.