Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 230 (UTT)

Maharaj Singh v. Pandit Purnananad Shiksha Samiti

2023-03-18

SHARAD KUMAR SHARMA

body2023
JUDGMENT : (Sharad Kumar Sharma, J.) 1. The present plaintiffs/appellants have preferred a suit being Civil Suit No. 77 of 2002, “Maharaj Singh and another vs. State of Uttarakhand and others”. 2. In the suit thus preferred by the present plaintiffs/appellants, he has prayed for the following reliefs: ^^13- ;g fd oknhx.k U;k;ky; Jheku th ls izkFkhZ gS fd& v- ;g fd izfroknhx.k] muds vf/kdkjhx.k] deZpkjhx.k o muds izfrfu/kh;ksa dks vknsf'kr djrs gq,s fcØh LFkkbZ fu'ks/kkKk ckgd oknhx.k f[kykQ izfroknhx.k bl vej dh lkfnj Qjek;h tkos fd izfroknhx.k] oknhx.k tks fd iz'uxr lEifRr ij cgSfl;r dkfct gS] muds 'kkUrh iw.kZ dCts esa fdlh izdkj dk gLrk{ksi o rksM QksM ;k {kfrxzLr djus ls ges'kk ds fy;s ckt jgsA c- ;g fd ?kks'k.kkRed fMØh ckgd oknhx.k f[kykQ izfroknhx.k bl vej dh lkfnj Qjek;h tkos fd dfFkr 'kklukns'k la0 vkbZ0ch0,p0 139@71 fnukad 7&3&72 drbZ 'kwU; o fu"izHkkoh gSA l- [kpkZ eqdnek oknhx.k dks izfroknhx.k ls fnyk;k tkosA n- vU; vuqrks"k tks ckgdoknhx.k gks] oknhx.k dks fnyk;s tkosA^^ 3. The suit thus instituted on 24.07.2002, at the behest of the present plaintiffs/appellants, they had claimed for a decree of grant of permanent injunction, as against the employees of the defendant/respondent nos. 1 to 6. The private respondent-Pandit Purnanand Shiksha Samiti was impleaded as defendant no. 7 by virtue of an amendment made on 27.07.2006. In the suit thus instituted by the plaintiffs/appellants, i.e. Suit No. 77 of 2002, what would be more important is the relief which was sought, that is by way of relief, be a declaration in relation to the property which was detailed at the foot of the plaint as given in Schedule ‘A’, and further to the effect that a declaration was sought qua government order 1379/71 dated 07.03.1972. 4. On the issuance of the notices in the suit in question, the defendant/respondent no. 4. On the issuance of the notices in the suit in question, the defendant/respondent no. 1 had filed a written statement on 30.08.2005, wherein, while denying the plaint allegations, he has invoked provisions contained under Order 8 Rule 6 (A) praying for a grant of the following decree: ^^29- ;g fd izfroknh tokcnsfgUnk bl dkmUVj Dyse ds tfj;s fuEu vuqrks"k ikus dk vf/kdkjh gS%& ¼v½ ;g fd fMØh csn[kyh bl vk'k; dh lknj Qjek nh tk;s fd izfroknhx.k iz'uxr Hkwfe tks fd izfrokn ds layXud&2 esa iznf'kZr gS [kkyh Hkwfe---- dk dCtk oknhx.k dks lkSai nsaA ,slk u djus ij izfroknhx.k dks tfj;s vnkyr oknhx.k dks csn[ky dj dCtk fnyk fn;k tk;sA ¼c½ ;g fd [kpkZ eqdn~nek fnyk;k tk;sA ¼l½ ;g fd vU; tks vuqrks"k mi;qDr gks izfroknhx.k ls oknh dks fnyk;k tk;sA^^ 5. With respect to the counter claims which are filed under Order 8 Rule 6(A), it goes without saying that it has to be decided as an independent suit, and it will constitute as to be a decree on its own, as per the provisions contained under Order 8 Rule 6A(4). 6. Being aggrieved against the judgment and decree, as it was rendered by the learned Trial Court, whereby, the plaintiffs’/appellants’ suit for the grant of declaration and a decree of permanent injunction, was dismissed and the counter claim preferred by defendant/respondent no. 7, who was later on impleaded in relation to Khasra No. 363kha having an area of 0.016 hectare and Khasra No. 364 having an area of 0.387 hectare, total 0.403 hectare of village Amritpur, Tehsil Jaspur, District Udham Singh Nagar, was decreed consequential for the eviction of the plaintiffs. 7. It is an admitted case that as of today, as against the dismissal of suit, for the grant of decree of permanent injunction and declaration, has already been dismissed, as against which no Second Appeal has been preferred by the plaintiffs/appellants as against the dismissal of the First Appeal. In fact, whatsoever the wisdom prevailed with the plaintiffs/appellants, they have preferred the Second Appeal confining his relief by putting a challenge to a decree in relation to the decreeing of the counter claim. 8. The challenge to the counter claim has been attempted to be made by the plaintiffs/appellants preferring the Second Appeal by formulation of following substantial questions of law: “1. 8. The challenge to the counter claim has been attempted to be made by the plaintiffs/appellants preferring the Second Appeal by formulation of following substantial questions of law: “1. Whether the judgment and order passed by the lower courts are sustainable in law? 2. Whether the decision passed by this Hon’ble Court in respect of the entitlement of the respondent no. 1 over the land recorded in Khasra No. 364 and 365 of Village Amritpur, Tehsil Juspur District Udham Singh Nagar is binding on the courts below? 3. Whether the respondent no. 1 who has no interest or title over the land in possession of the appellants can seek the relief of ejectment and possession against them? 4. Whether the respondent no. 1 can claim any interest over the land recorded in Khasra No. 364 and 365 of village Amritpur, Tehsil Juspur District Udham Singh Nagar beyond the area as determined by this Hon’ble Court?” 9. What has been attempted to be argued by the learned counsel for the plaintiffs/appellants is that, in fact, the controversy pertaining to their rights in relation to the property was a subject matter which was under consideration before the High Court in Writ Petition (PIL) No. 1197 of 2005 (M/B), ‘Rishipal Singh Rana vs. State of Uttaranchal and others’ alongwith Writ Petitioner (M/S) No. 1125 of 2007, ‘Dayakishan Kaloni vs. State of Uttaranchal and another’. The writ petition thus, preferred, the subject matter which was under challenge, was for quashing the government order dated 27.02.2004, the letter as contained therein i.e. 09.12.2004, as well as the consequential order issued by the Commissioner on 11.04.2005. 10. The Division Bench vide its judgment dated 25.11.2008 had proceeded to decide the two writ petitions, subject to the following directions: “36. For the reasons and discussion aforesaid, both the writ petitions are disposed of with the observation that the lease, which was granted by the State Government in favour of the respondent no.4- Shiksha Samiti shall be restricted only to the extent of the area, which is in possession of respondent no.4-Shiksha Samiti,i.e. the land measuring 0.016 hectare of Plot No. 363 Kha and land measuring 0.387 hectare of Plot No. 364, total 0.403 hectare of Village Amritpur, Tehsil Jaspur. So far as the rest of the land, i.e. land measuring 0.032 hectare of Plot No. 363 Kha and land measuring 0.370 hectare of Plot No. 364 (total 0.402 hectare) of Village Amritpur, Tehsil Jaspur is concerned, there exist two school run by Zila Panchayat as mentioned in the report submitted by the S.D.M. Jaspur, hence lease cannot be given effect to regarding that area and the lease shall be treated invalid in view of the provisions of Section 107 (2) of the Adhiniyam, because when the lease was made, two schools of Zila Panchayat were also still continuing as on today. In the public interest, that part of the land cannot be transferred to the respondent no.4-Shiksha Samiti for which the learned counsel for respondent nos. 4 and 5 Sri Jitendra Chaudhary has also made a statement of Bar before us during the course of arguments that they have no concern to that area and the lease may be restricted only to the area, which is in possession of the respondent no.4-Shiksha Samiti. Costs easy.” 11. The Division Bench of this Court in the judgment as aforesaid has observed that the lease which was granted by the State Government in favour of the Shiksha Samiti would be limited to the extent of the area, which is in the possession of respondent no. 4 in the writ petition i.e. Shiksha Samiti, limited for the land measuring therein, exists for the purposes of running school by Zila Panchayat. The foundation of the conclusion drawn by the Division Bench as it was based upon the SDM report, regarding the area of lease as per the provision contained under Section 107(2) of the Act. According to it, he submits that at a later stage, on 27.07.2019, the District Magistrate through the Sub-divisional Magistrate has carried a modification in the revenue entries in relation to the land lying in Khata no. 363 and 364 having a total area of 0.8090 hectare, in order to rectify the revenue entries as it stood in the name land recorded with the Zila Panchayat. 12. The plaintiffs/appellants contends, that the respondent no.1 and that of the defendant’s right would be confined to in the context of Entry 11 of the said report submitted by the Sub- divisional Magistrate on 27.07.2019, which was exclusively confined in relation to the Khasra nos. 12. The plaintiffs/appellants contends, that the respondent no.1 and that of the defendant’s right would be confined to in the context of Entry 11 of the said report submitted by the Sub- divisional Magistrate on 27.07.2019, which was exclusively confined in relation to the Khasra nos. which has been contained in the second column of the said report. 13. The issue would be that when, a suit is instituted by a plaintiff for the grant of decree of declaration, in relation to a property which was described at the foot of the plaint, and the same has been dismissed and as against which the appeal has not yet been preferred, though, the period of limitation to prefer the same is still to expire, whether, as against the decreeing of counter claim, a Second Appeal would lie at the behest of the plaintiff/appellant whose suit for grant of declaration in relation to the property has been dismissed. 14. This Court is of the view that once by the judgment rendered by the Trial Court, where the plaintiff has been held to be not entitled to be grant a decree of permanent injunction or declaration, and in the absence of a challenge of the same being given before the First Appellate Court till date, is a status i.e. that of the plaintiff to put a challenge to the counter claim would be barred by Principles of Estoppel, because he has submitted to the decree rendered in a Suit No. 77 of 2002 against him, where declaration of title in relation to disputed property has been denied. 15. Even otherwise, if the judgment of the First Appellate Court as rendered in Civil Appeal No. 26 of 2016, “Maharaj Singh and another vs. State of Uttarakhand and others” is taken into consideration, in fact, the First Appellate Court by the judgment under challenge in this first appeal has affirmed the grant of decree in the counter claim and had upheld the rights as granted to the defendant no. 7 of the Suit in relation to the land which was subject matter of the rights granted to them by the lease granted in their favour by the State. 16. 7 of the Suit in relation to the land which was subject matter of the rights granted to them by the lease granted in their favour by the State. 16. The plaintiffs/appellants in fact so far as it relates to the counter claim, would be a concurrent judgment debtor, this Court of the view that once the plaintiffs/appellants have been held to be not entitled to be granted with a decree of declaration in relation to the property in question, they cannot claim to the contrary in relation to the property in question vested with defendant by a Government Order, by putting a challenge to the grant of decree in the counter claim for handing over of possession of the land which was leased to the respondent- Shiksha Samiti. 17. Besides this, the substantial question of law, which has been framed and as extracted above, they do not attract an answer to any substantial question of law which may have any bearing or which may go to the root cause of the suit or the appellate judgment. 18. The Second Appeal, since it entails no substantial question of law and it is concluded by concurrent finding of facts, couple with the fact that the plaintiffs themselves happen to be a judgment debtors in a suit for declaration of their rights. 19. The Second Appeal lacks merit and the same is accordingly dismissed.