JUDGMENT : 1. This judgment will decide Second Appeal No.108 of 2008 and Second Appeal No.26 of 2020, both of which arise out of the same suit. The Trial Court decided the suit by the same judgment, leading to a single appeal from the original decree by one of the defendants. The judgment and decree passed by the Lower Appellate Court has left both the plaintiffs and the defendants dissatisfied, leading to these two appeals, arising out of the appellate decree. 2. Original Suit No.389 of 1986 was instituted on 14.11.1986 by Kanchan Singh and Man Singh, both sons of Babu Lal in the ex-Court of the Civil Judge, Mathura (now Civil Judge, Senior Division) against seven defendants, shortly to be specified. 3. By the said suit, the plaintiffs sought relief of permanent prohibitory injunction to the effect that the defendants be restrained from interfering with the plaintiffs' title or possession in Khasra No.216, admeasuring -61 decimals, Khewat No.1, situate at Villate Neelkanth, District Mathura, or on the basis of rights created amongst themselves from demolishing (any construction) or digging up a foundation on the said property and constructing anything thereon or interfere with the plaintiffs raising a boundary wall around the said property, and further forbear from interfering with the plaintiffs' possession in any manner or take possession of the property themselves. 4. The defendants to the suit are the Town Area Committee, Sadabad through its Officer In-charge. The Town Area Committee aforesaid was then included in the district of Mathura, but is now part of District Hathras. The District Magistrate, Mathura is the second defendant to the suit, whereas the third defendant is the Government of Uttar Pradesh, represented by the Collector, Mathura. The fourth defendant to the suit was the Station House Officer, P.S. Sadabad, District Mathura (now District Hathras). The fifth defendant to the suit was the Superintendent of Police, Mathura. The sixth defendant was the Director General of Police, Uttar Pradesh, Lucknow and the last defendant was the Deputy Inspector General of Police, Agra Range, Agra. 5. It may be mentioned at the outset that though pending suit, many of the defendants would have changed, because Town Sadabad came to be included in the district of Hathras, but the suit was contested by defendant Nos.1 and 4 alone, who put in their written statements and led evidence. 5. It may be mentioned at the outset that though pending suit, many of the defendants would have changed, because Town Sadabad came to be included in the district of Hathras, but the suit was contested by defendant Nos.1 and 4 alone, who put in their written statements and led evidence. The other defendants did not file any written statement or otherwise contest. After the reverse in the Trial Court suffered by the defendants, it was defendant No.1 alone, which appealed the original decree to the District Judge, and loosing there, has carried Second Appeal No.108 of 2008. Defendant No.4 gave up contest after the Trial Court's judgment. 6. In Second Appeal No.108 of 2008, which is being treated the leading case, the Town Area Committee, Sadabad, District Mathura through its Officer In-charge/ Chairman, is the sole defendant-appellant. Hereinafter, the defendant-appellant shall be referred to as defendant No.1. Respondent Nos.1 and 2 to this appeal are the plaintiffs. The other defendants to the suit in the present appeal are arrayed as defendant-respondent Nos.3, 4, 5, 6, 7 and 8, and described as defendant/ proforma respondents. The said defendants shall be called hereinafter as defendant Nos.2, 3, 4, 5, 6 and 7 for the ease of reference. 7. In Second Appeal No.26 of 2020, Kanchan Singh and Man Singh are the two plaintiff-appellants and respondent Nos.1 to 7 are defendant Nos.1 to 7 in the suit. Kanchan Singh died pending Second Appeal No.108 of 2008 and before Second Appeal No.26 of 2020 was instituted. Both the plaintiff are now represented on record by their heirs and LRs, who have contested and pursued these appeals, representing the plaintiffs' interest. For the ease of reference, therefore, the plaintiffs shall be referred to as 'the plaintiffs', wherever there is a collective reference and should individual reference be necessary, they would mentioned by their names as 'Kanchan Singh' or 'Man Singh', it being understood that it bears reference to their heirs and LRs now on record. 8. The plaintiffs' case is that they are owners in possession of the property, part of Khewat No.1, Khasra No.16, admeasuring -61 decimals, situate at Village Neelkanth, Pargana Sadabad, District Mathura with boundaries to identify, being set out at the foot of the plaint. The said property shall hereinafter be called 'the suit property'. 8. The plaintiffs' case is that they are owners in possession of the property, part of Khewat No.1, Khasra No.16, admeasuring -61 decimals, situate at Village Neelkanth, Pargana Sadabad, District Mathura with boundaries to identify, being set out at the foot of the plaint. The said property shall hereinafter be called 'the suit property'. It is the plaintiffs' case that the suit property was earlier owned by Kisan Swarup, Raman Bihari, Jaiveer Singh, sons of Bankey Lal, and Ram Autar and Ram Kumar sons of Sohan Lal, who were in possession of the same. A more detailed mention of the plaintiffs' vendors shall be made later on, indicating the line of inheritance, as the plaintiffs' vendors claimed the suit property to be ancestral. The suit property was recorded in the name of the plaintiffs' vendors as a 'Pajawa'. The plaintiffs' vendors would fire this brick kiln, the byproduct of which was ash, that would collect on the suit property. The then owners would give away the collected ash on a contract for sale. The former owners earlier and the plaintiffs for the present, still sell off ash that lies on the suit property. 9. The plaintiffs' case further is that the suit property, on account of large deposits of ash from the brick kiln, has become undulated and they have got one part of it levelled. The plaintiffs entered into an agreement dated 15.03.1979 contracting to buy the suit property from their vendors, paying in earnest a sum of Rs.2000/-. It is the plaintiffs' case that they got a sale deed of the suit property to the extent of -13 ¼ decimals executed in their favour by Bhagwati Prasad, Raj Bahadur, Chandra Prakash, all sons of Bankey Lal. The sale deed aforesaid was executed and registered on 23.03.1979 for a total sale consideration of Rs.6000/-. The plaintiffs further purchased an area of 43-4/7 decimals by means a registered deed dated 16.05.1979 executed by Kisan Swarup, Raman Bihari, Jaiveer sons of Bankey Lal and Ram Autar, Ram Kumar sons of Sohan Lal, for a total sale consideration of Rs.20,000/-. 10. The vendors aforesaid put the plaintiffs in possession of the suit property thus transferred. The plaintiffs' name was duly mutated in the revenue records on the basis of the sale deeds aforesaid. 10. The vendors aforesaid put the plaintiffs in possession of the suit property thus transferred. The plaintiffs' name was duly mutated in the revenue records on the basis of the sale deeds aforesaid. The plaintiffs expended money and got a room constructed, 15' long and 12' wide, towards the north-eastern part of the suit property. The plaintiffs got a part of the suit property levelled and intended to get the same done for the remainder for the purpose of raising constructions. The suit property was in the joint possession of the plaintiffs' vendors and the defendants could have had no concern with it. It is the plaintiffs' case that Ranveer Singh son of Pancham Singh, a resident of Vedai, Tehsil Sadabad and Roshan Lal stirred up a bogus controversy, because they wanted to extort money from the plaintiffs. In order to vindicate their rights against the two men last mentioned, the plaintiffs had to institute O.S. No.152 of 1979 in the Court of the Munsif, Mahawan, District Mathura, titled Kanchan Singh and others vs. Ranveer Singh and others. 11. The plaintiffs say that they needed to raise a loan and, therefore, mortgaged the suit property with the State Bank of India, Sadabad Branch, which holds rights over the suit property to the extent of all its -61 decimals. The plaintiffs sold away a part of the suit property to Ranveer Singh, the man they later had to sue and delivered possession to him, openly in terms of their deed. The sale deed, the plaintiffs' executed in Ranveer Singh's favour, related to that part of the suit property, over which they had constructed a room. The plaintiffs say that some men from Sadabad harbour ill-will and malice against them and some employees of the Town Area Committee, Sadabad (defendant No.1) are inclined to trouble the plaintiffs. Accordingly, defendant No.1 are designing to usurp the suit property and have incorrectly informed defendant No.2 that the suit property belongs to defendant No.1. 12. It is the plaintiffs' further case that defendant Nos.1 and 2 doing some transfer by writing amongst themselves are intending to assign the suit property to defendant Nos.5, 6 and 7 for the purpose of construction of a Police Chowki. The said defendants (Nos.1 and 2) do not have the right to do that. 12. It is the plaintiffs' further case that defendant Nos.1 and 2 doing some transfer by writing amongst themselves are intending to assign the suit property to defendant Nos.5, 6 and 7 for the purpose of construction of a Police Chowki. The said defendants (Nos.1 and 2) do not have the right to do that. The plaintiffs assert that defendant No.4 is unnecessarily interfering with the the plaintiffs' use of the suit property. The plaintiffs allege raising a boundary wall over the suit property, which defendant No.4 interfered with and got the construction illegally stopped, threatening the plaintiffs with arrest and detention in jail. All the defendants are said to be in connivance, on account of which, they have been impleaded as defendants to the suit. 13. It is the plaintiffs' case that they are scared of defendant Nos.1, 3, 4 and 6, because they are extending threats to the plaintiffs, asking them to transfer rights in favour of defendant Nos.1-3 and 4-6, so that they may construct the Kotwali there soon. The local Patwari is scared of defendant No.2 and does not speak the truth for that reason. There is an averment in paragraph No.16 of the plaint that in case the plaintiffs were to serve a notice under Section 80 CPC and wait for the statutory period of two months before instituting the suit, the purpose of instituting the suit would become futile. Defendant Nos.1-3, 5, 6 and 7 would amongst themselves, doing the necessary paper work, raise construction over the suit property, dispossessing the plaintiffs, which would cause irreparable loss and injury to the plaintiffs. It is also averred that for the said reason, leave ought to be granted to the plaintiffs to institute the suit, without service of the statutory notice and waiting for the statutory period of two months. Disclosing the aforesaid cause of action involving threatened dispossession and forcible construction on the suit property, the plaintiffs instituted the suit, giving rise to this appeal, for the relief of permanent injunction per details already indicated. 14. Defendant No.1 filed a written statement. The said defendant admitted the fact that the suit property was indeed located in Khasra No.216, but denied that the plaintiffs were the owners thereof. 14. Defendant No.1 filed a written statement. The said defendant admitted the fact that the suit property was indeed located in Khasra No.216, but denied that the plaintiffs were the owners thereof. Defendant No.1 further admitted the fact that in the revenue records, the suit property was entered as a Pajawa and about this entry, it is said in a plea of avoidance that it has been wrongly made in those records. The other allegations in the plaint were denied and it was pleaded that neither the plaintiffs nor their transferers hold title to the suit property; nor any of them were in possession. The case about the plaintiffs' predecessor running a brick kiln on the suit property, leading to the accumulation of ash there, was all denied. The fact of execution of sale deeds for whole of the suit property was also denied. It was also denied that the plaintiffs' transferers were owners of the entire suit property. It was pleaded that for the said reason, they did not have the right to transfer the entire suit property to the plaintiffs. The plaintiffs' case about construction of a room there has also been denied. The reason assigned is that the plaintiffs never presented any building plan for sanction before defendant No.1, authorizing them to raise that construction. 15. It is the case of defendant No.1 that a perusal of the Khewat relied upon by the plaintiffs shows that the entire area is 2.80 decimals. Bankey Lal son of Kanhaiya Lal and Sohan Lal son of Jagannath (ancestors of the plaintiffs' transferers) are recorded over a total area of 35 49/107 decimals. The revenue records show that the concerned persons have got forged entries made therein. It is then pleaded on behalf of defendant No.1 that through their former Chairman, they got an application under Section 39 of the U.P. Land Revenue Act made for correction of the revenue records, which was registered as Case No.8 of 1975-76. The application was moved for correction of records relating to Khasra Nos.240, 241 and 242, all situate in Village Neelkanth. Bhagwati Prasad and others were parties to the said case. 16. It is then pleaded that defendant No.1 got the aforesaid plot numbers acquired along with other plot numbers, as would appear from the order of the Land Acquisition Officer, Mathura. Bhagwati Prasad and others were parties to the said case. 16. It is then pleaded that defendant No.1 got the aforesaid plot numbers acquired along with other plot numbers, as would appear from the order of the Land Acquisition Officer, Mathura. It is also pleaded that Bankey Lal, Sohan Lal and others, who were recorded as tenure holders were also paid compensation. Accordingly, the Town Area Committee was delivered possession over the suit property on 30.05.1953. It is on account of connivance with the former Lekhpal that names of the plaintiffs' predecessors were entered in the Khewat for the purpose of extending undue benefit to them. It is the said defendant's case that the entry relating to 1376 Fasli is wrong. 17. It is also pleaded that according to orders passed on 20.12.1975 in Mutation Case No.8 of 1975-76, the names of Bhagwati Prasad, Bishan Swarup, Raj Bahadur, Bankey Lal, Sohan Lal and others were mutated out and their revision against the said order was dismissed by the Additional Commissioner, Agra Division, Agra vide his order dated 25.08.1976. Earlier, Village Gadhi Neelkanth was part of Gram Sabha Koopa and after extension of the boundaries of the Town Area, the suit property came to fall within the local limits of the Town Area. All properties of the Gaon Sabha stood vested in the Town Area Committee. 18. It is also the case of defendant No.1 that in the records, the plaintiffs' ancestors were never recorded as ones in possession. The plaintiffs have taken possession on the basis of a sale deed, which confers no title on them. According to defendant No.1, it is evident from the documentary evidence that plot Nos.240, 241 and 242 had old numbers 139, 131, 132 and 133. It is also the case of defendant No.1 that the suit property adjoins land that was acquired for defendant No.1. The plaintiffs have, in collusion with their vendors, got a sale deed executed in their favour and on that flawed basis claimed themselves to be titleholders of the suit property, a fact which is absolutely incorrect. The sale deed executed by the former owners in favour of the plaintiffs is void and confers no title upon them. The plaintiffs can neither be owners of the entire Khasra No.216 nor co-sharers therein. 19. The sale deed executed by the former owners in favour of the plaintiffs is void and confers no title upon them. The plaintiffs can neither be owners of the entire Khasra No.216 nor co-sharers therein. 19. The plaintiffs got a notice dated 02.12.1985 under Section 80 CPC served upon defendant No.1 on incorrect premises, and without awaiting expiry of the notice period, instituted the suit. According to defendant No.1, the Collector of Mathura, is their Administrator and it is upon his directions that the suit property has been handed over to the Police Department. The decision has been taken in the interest of the local population, which the plaintiffs have no right to frustrate by presenting the instant suit. At the time of institution of the suit, the plaintiffs were not in possession. The suit is barred by Section 34 of the Specific Relief Act. The suit is undervalued. The entire suit property is worth at least Rs.2,50,000/-. The court-fee paid is insufficient. The plaintiffs have got incorrect entries made (in the revenue records) and appropriate steps to rectify the records are being taken after seeking necessary legal advice. It is pleaded that defendant No.1 does not accept the plaintiffs' title to the suit property. The suit has been instituted on incorrect facts, which ought to be dismissed with costs. 20. Defendant No.4 filed a separate written statement denying the plaint allegations, but admitting the fact that the suit property is located in Khasra No.216. It has been denied that any cause of action has arisen to the plaintiffs to institute this suit, which according to defendant No.4 is founded in incorrect premises. The plaintiffs are not in ownership possession of the suit property. They were never owners of the said property. The plaintiffs' vendors never had title to the suit property. It is defendant No.1, who was always the titleholder of the suit property and in possession thereof, and now, it is defendant No.4, who holds possession. 21. According to defendant No.4, the population of Tehsil Sadabad has considerably increased. The Police Station, that is existing, is very small, which does not allow work to be done properly. It is in view of this fact that it was considered appropriate that the police station be expanded and a new one constructed. 21. According to defendant No.4, the population of Tehsil Sadabad has considerably increased. The Police Station, that is existing, is very small, which does not allow work to be done properly. It is in view of this fact that it was considered appropriate that the police station be expanded and a new one constructed. The Superintendent of Police, for the purpose of securing some land, invited the attention of the State Government, represented by the Collector. Accordingly, defendant No.3 (the Collector) gave away the suit property to defendant No.4, because at the relevant time, defendant No.1 were under the control of the Collector, who had all authority to transfer defendant No.1's land in favour of defendant No.4. 22. In order to construct a new police station, tenders were invited and a contract for the purpose was granted for a sum of Rs.8 lacs in favour of one C.P. Singh Chaudhary. He was paid out of the settled sum, under the contract, a sum of Rs.2 lacs. The contractor has commenced work at site and laid foundation for the construction of four rooms, a verandah, a lavatory and a bathroom. Building materials worth Rs.2 lacs, belonging to the contractor, are lying stacked at site. The plaintiffs have no concern with the suit property nor did they ever hold title or possession of the same. The plaintiffs have not complied with the provisions of Section 80 CPC. The plaintiffs' suit is not maintainable. 23. Here, it may be noticed that pending suit, the plaintiffs came up with a case that defendant Nos.2 to 7, in connivance with defendant No.1, violating the temporary injunction order, that was operating in favour of the plaintiffs, forcibly took possession of the suit property and have raised construction on the same, which they have no right to do. In the circumstances, the plaintiffs are entitled to possession of the suit property, after demolition of constructions raised with liberty to the defendants to carry away the building material. 24. An amendment to the above effect was sought by the plaintiffs through an application, that was granted vide order dated 29.01.1991. A further amendment was sought to the relief clause, where after deleting the relief of permanent prohibitory injunction, the plaintiffs sought relief of possession after demolition of constructions raised by the defendants with liberty to them to carry away the building material. A further amendment was sought to the relief clause, where after deleting the relief of permanent prohibitory injunction, the plaintiffs sought relief of possession after demolition of constructions raised by the defendants with liberty to them to carry away the building material. Court-fee was paid ad valorem on the relief of possession. 25. Defendant Nos.1 and 4 have filed two additional written statements in answer to the pleas raised on behalf of the plaintiffs through amendments. Both the defendants in their additional written statements denied the amended pleas, including the assertions that the defendants, by connivance amongst themselves, have taken possession of the suit property, in violation of the temporary injunction by force and raised constructions thereon. It was pleaded that the suit property's owner was defendant No.1 and it is the said defendant, which had given possession to the Government of U.P. It was also pleaded that on the suit property, a building to house the Police Station Sadabad has already been constructed, wherein the Government have spent a sum of Rs.5 lacs. It was, therefore, urged that the plaintiffs are not entitled to relief of possession. 26. On the pleadings of parties, the following issues were framed (translated into English from Hindi) : "(1) Whether the plaintiffs are owners of the property in dispute? (2) Whether on the date of institution of the suit, the plaintiffs were in possession of the suit property? (3) Whether the suit is undervalued? (4) Whether the suit is barred by Section 34 of the Specific Relief Act? (5) To what relief are the plaintiffs entitled? (6) Whether the defendants have dispossessed the plaintiffs pending suit? (7) Whether the suit is undervalued and the court-fee paid insufficient?" 27. On behalf of the plaintiffs, six witnesses were examined, to wit, Man Singh, plaintiff No.1, who testified as PW-1, Munshi son of Gaffur as PW-2, Udai Ram, Ahalmad, Civil Court, Mathura was examined as PW-3, Kishan Swarup son of Bankey Lal testified as PW-4, Sultan Singh Pachauri was examined as PW-5 and Chandrabhan Gautam, Advocate appeared in the witness-box as PW-6. 28. On behalf of the defendants, four witnesses were examined: Ram Kishan, DW-1 and Pusaram Santoshi, DW-2, both these witnesses being examined on behalf of defendant No.1; and, Sub-Inspector R.P. Tyagi and Chandrapal Singh, Inspector C.B. C.I.D., Agra, were examined as DW-3 and DW-4, respectively on behalf of defendant No.4. 28. On behalf of the defendants, four witnesses were examined: Ram Kishan, DW-1 and Pusaram Santoshi, DW-2, both these witnesses being examined on behalf of defendant No.1; and, Sub-Inspector R.P. Tyagi and Chandrapal Singh, Inspector C.B. C.I.D., Agra, were examined as DW-3 and DW-4, respectively on behalf of defendant No.4. A wealth of documentary evidence was produced on behalf of the plaintiffs, details whereof are summarized in the judgments of the Courts below; particularly, that of the Trial Court. Likewise is the position on behalf of defendant Nos.1 and 4, who too produced some documentary evidence. It is not necessary to set forth the summary of the documentary evidence filed by parties, the relevant of which would be noticed during the course of this judgment. 29. So far as Issue Nos. 3 and 7 are concerned, the same were disposed of in terms of an order dated 13.02.1991 with the issues being answered in favour of the plaintiffs. 30. Insofar as Issue No.4 is concerned, the Trial Court held that this issue was not pressed at the hearing and, therefore, answered against the defendants. 31. Issue No.2 was answered in favour of the plaintiffs and against the defendants, holding that evidence led by the plaintiffs was stronger and more dependable as compared to that on behalf of defendants, which shows for all the reasons assigned, based on evidence discussed, that it was the plaintiffs, who were in possession at the time of institution of the suit. 32. Issue No.1 was also answered for the plaintiffs and against the defendants holding, after a very elaborate discussion of the evidence on record, that the plaintiffs are owners of 46 9/14 decimals of land out of the total 61 decimals, and that they are entitled to be declared so. It was also held that the Police Department had taken possession of the suit property without right, illegally. 33. Likewise, Issue No.6 was answered in favour of the plaintiffs holding that the defendants had taken possession of the suit property after dispossessing the plaintiffs during pendency of the suit. In working out the relief, which the Trial Court dealt with while deciding Issue No.5, it was held that out of the total area of 61 decimals of plot No.216, the plaintiffs purchased through the two sale deeds, an area 56-9/14 decimals. Out of this area, they transferred 10 decimals in favour of Ranveer. In working out the relief, which the Trial Court dealt with while deciding Issue No.5, it was held that out of the total area of 61 decimals of plot No.216, the plaintiffs purchased through the two sale deeds, an area 56-9/14 decimals. Out of this area, they transferred 10 decimals in favour of Ranveer. This has left the plaintiffs with an area 46-9/14 decimals, of which they are owners. It was further held that the plaintiffs are entitled to possession over 46-9/14 decimals of land out of the suit property, after demolition of the existing constructions raised thereon by the defendants. The suit was, accordingly, decreed for possession of 46-9/14 decimals of land out of the suit property after dispossessing the defendants therefrom. The defendants were ordered to deliver possession of 46-9/14 decimals of land to the plaintiffs out of the suit property within two months of the date of the decree and to do so after removal, within the said time, of constructions raised thereon. It was also ordered that constructions that have been raised over the suit property by defendant Nos.4 and 7 could be dismantled and the materials carried away by the said defendants. In the event, the decree was not carried out within the time allowed, the plaintiffs would be at liberty to cause the constructions to be demolished at the cost of defendant Nos.4 and 7 and recover possession of the suit property. 34. Defendant No.1 alone appealed the decree, which was initially presented before this Court, but on account of amendment to the Bengal, Agra and Assam Civil Courts Act, 1887, was sent down to the District Judge, who was the Appellate Court of competent pecuniary jurisdiction. The appeal ultimately came up for hearing before the Additional District Judge, Hathras, the Tehsil of Sadabad by then being included within the territories of the newly created district of Hathras. The appeal ultimately came up for hearing before the Additional District Judge, Hathras, the Tehsil of Sadabad by then being included within the territories of the newly created district of Hathras. The Additional District Judge vide his judgment and decree dated 08.10.2007 substantially affirmed the Trial Court, but modified the decree only to the extent that after separating the area of 46 9/14 decimals out of the suit property, regarding which the suit for demolition and possession has been decreed, the part of the constructions raised by defendant Nos.4 to 7, that fall within the said area, be valued and the cost thereof directed to be paid by the plaintiffs to defendant Nos.4 to 7, after their dispossession. 35. Aggrieved by the appellate decree, defendant No.1 has preferred Second Appeal No.108 of 2008, seeking its reversal, whereas Second Appeal No.26 of 2020 was preferred by the plaintiffs from that part of the Lower Appellate Court's decree, which has directed costs of the construction illegally raised by defendant No.4 to be paid by the plaintiffs to defendant Nos.4 to 7. Second Appeal No.108 of 2008 was admitted to hearing on 20.07.2012, though instituted much earlier on 23rd January, 2008, on the following substantial questions of law : "(a) Whether the courts below were justified in not adverting to the provisions of U.P. Municipalities Act, 1916 wherein every notified area committee has been assigned the status of a Municipality/ Nagar Panchayat and as such non-compliance with the mandatory requirements of Section 326 of U.P. Municipalities Act by the plaintiff could have at all been ignored? (b) Whether entry in revenue records qua the land in dispute as "Pajava" was not a conclusive proof of automatic vesting of the land in the defendant-appellant/ State and hence the findings recorded by the courts below on the issue of title and ownership of the disputed land against the defendant-appellant are legally sustainable?" 36. Second Appeal No.26 of 2020 (Second Appeal Defective No.33 of 2017) was admitted to hearing on 06.01.2020 framing the following substantial questions of law : "(i) Whether the court of first appeal was justified in granting such relief in favour of Nagar Kshetriya Samiti Sadabad i.e. defendants to recover the amount of cost to the encroachment/existing construction when admittedly no counter claim was filed nor any relief was sought to this effect. (ii) Since appeal No. 108 of 2008has already been admitted, list this appeal for analogous hearing." 37. Heard Mr. Kshitij Shailendra, learned Counsel appearing on behalf of defendant No.1 and Mr. Preet Pal Rathore, learned Counsel appearing on behalf of the plaintiffs. No one appears on behalf of defendant Nos.2 to 7. Mr. Preet Pal Singh, learned Counsel has been heard on behalf of the plaintiffs in support of Second Appeal No.26 of 2020 and Mr. Kshitij Shailendra, learned Counsel on behalf of defendant No.1. No one appears on behalf of defendant Nos.2 to 7 in this appeal also. 38. It would be apposite to consider the parties' case in each of the two appeals separately with reference to the Substantial Question(s) of Law framed in the relative appeal. A. Second Appeal No.108 of 2008 Substantial Question (a) 39. It is submitted on behalf of defendant No.1 that the plaintiffs have not complied with the requirements of Section 326 of the Uttar Pradesh Municipalities Act, 1916 (for short, 'the Act of 1916'). The learned Counsel for defendant No.1 submits that before the institution of a suit against a Municipality under the Act of 1916, it is imperative that a notice is served in writing upon the Municipality, indicating particulars mentioned in sub-Section (1) of Section 326. After service of notice contemplated in Section 326(1), a period of two months must elapse before the suit is instituted. Attention of the Court has been drawn to the provisions of Section 326 of the Act of 1916, which read : "326. Suits against Municipality or its officers. - (1) No suit shall be instituted against a Municipality, or against a member, officer or servant of a Municipality, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been in the case of a Municipality, left at its office, and, in case a member, officer or servant, delivered to him or left at Iris office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) If the Municipality, member, officer or servant shall, before action is commenced, have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, shall also pay all costs incurred by the defendant after such tender. (3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action (4) Provided that nothing in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding." 40. It is urged by the learned Counsel for defendant No.1 that the suit here was one that was initially instituted for the relief of permanent prohibitory injunction alone, but later on converted into a suit for demolition and dispossession. And, still, no notice under Section 326 of the Act of 1916 was served upon defendant No.1, as mandated by Section 326(1) of the last mentioned Act. It is urged that it was incumbent for the plaintiffs to serve a notice under Section 326 upon defendant No.1, in order to maintain their action. Learned Counsel for defendant No.1 has invited attention of the Court further to the provisions of Section 3-A(3)(b) of the Act of 1916. In order to understand the provisions of Section 3-A(3)(b) aforesaid, it would be necessary to set forth Section 3-A of the Act of 1916, which reads : "3A. Municipality for every transitional area and smaller urban area. - (1) A municipality constituted under clause (1) of Article 243-Q of the Constitution in accordance with Part IX-A thereof shall, - (a) for every transitional area, be known as the Nagar Panchayat; (b) for every smaller urban area be known as the Municipal Council. (2) Every Nagar Panchayat or Municipal Council constituted under subsection (1), shall be a body corporate. (2) Every Nagar Panchayat or Municipal Council constituted under subsection (1), shall be a body corporate. (3) Notwithstanding anything in sub-section (1), - (a) every Municipal Board existing immediately before the commencement of the Uttar Pradesh Urban Local Self Government Laws (Amendment) Act, 1994, shall [from such commencement and until the first constitution of the Municipal Council under this Act as amended by the said Act be deemed to be a Municipal Council under the Act; (b) every notified area committee constituted under Section 338 or Town Area Committee constituted under the Uttar Pradesh Town Areas Act, 1914, as it stood immediately before the commencement of the Act referred to in clause (a), shall [from such commencement and until the first constitution of the Nagar Panchayat under this Act, as amended by the Act referred to in clause (a)] be deemed to be a Nagar Panchayat under this Act." 41. There is a further submission that the learned Counsel for defendant No.1 has made while concluding his arguments on the first of the two substantial questions of law. He says that so far as the other defendants are concerned, they are the State and its officers, against whom a suit would not lie without service of a notice under Section 80 of the Code of Civil Procedure, 1908 (for short, 'the Code'). It is urged that, even if initially, the relief claimed was one of permanent prohibitory injunction, no exemption under sub-Section (2) of Section 80 of the Code was claimed. More so, after amendment of the plaint, the cause of action having changed from a suit for permanent prohibitory injunction into a suit for demolition and possession, service of notice under Section 80, based on the amended cause of action and the amended plaint, was mandatory. And, in the absence of service of notice under Section 80 of the Code, this suit against the other defendants, that is to say, the State and its various officers is not maintainable. 42. In answer, Mr. Preet Pal Singh Rathore, learned Counsel appearing for the plaintiffs submits that defendant No.1 has raised this plea for the first time before this Court. 42. In answer, Mr. Preet Pal Singh Rathore, learned Counsel appearing for the plaintiffs submits that defendant No.1 has raised this plea for the first time before this Court. It is pointed out that whereas in Paragraph No.42 of this defendant's written statement, there is a traverse about the time of service of notice under Section 80 of the Code, there is no pleading either in the written statement or a ground in the memorandum of first appeal, regarding want of the mandatory notice under Section 326 of the Act of 1916. It is argued that the plea regarding a bar of the suit under Section 326 of the Act last mentioned, not being raised in the written statement or before the Lower Appellate Court, it cannot be permitted to be raised for the first time in second appeal. A perusal of the written statement filed on behalf of defendant No.1 shows that indeed there is no plea raised on behalf of the said defendant regarding non-compliance with the provisions of Section 326 of the Act of 1916. The only pleading about the want of a notice is to be found in Paragraph No.42 of the written statement dated 07.01.1987. The said plea is to the effect that defendant No.1 was served with a notice dated 02.12.1985 on incorrect facts by the plaintiffs through their Counsel. It was a notice under Section 80 of the Code and that the suit was instituted without waiting for the statutory period mentioned in the said notice. 43. Now, so far as a notice under Section 80 of the Code is concerned, that relates to the mandatory requirement of service of a notice as envisaged under sub-Section (1) of Section 80, when a suit is instituted against the Government or a public officer in respect of any act done in his official capacity. Sub-Section (1) mandates that the statutory notice contemplated under Section 80 of the Code must be served upon the Government or a public officer, if it relates to official actions of such public officer, and a suit can be instituted after expiry of two months from date of service of notice in writing at the office of the specified officer of the Government, and in the case of a public officer, delivered to such officer or left at his office. What the notice must essentially state is also laid down by sub-Section (1) of Section 80 of the Code. 44. It must be remarked that a notice under Section 80 of the Code is not to be confounded with a notice under Section 326 of the Act of 1916. The object of both kinds of notices issued under very different statutes may be similar or even identical. But, the two are not the same. The identities of parties entitled to a notice under Section 80 of the Code and Section 326 of the Act of 1916 are also different. A notice under Section 80 of the Code, as already noticed, is mandatory, where an action is brought against the Government or one of its officials for an act done in their official capacity, whereas a notice under Section 326 of the Act of 1916 is mandatory, except to the extent contemplated under sub-Section (4) thereof, in the case of a Nagar Palika Parishad or Nagar Panchayat governed by the provisions of the Act, last mentioned. 45. There is no quarrel about the fact that a Town Area Committee constituted under the Uttar Pradesh Town Areas Act, 1914 by virtue of Section 3-A(3)(b) until the first constitution of a Municipal Council, after commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1994 be deemed to be a Nagar Panchayat under the Act of 1916. This being so, the defendant No.1 here, a Town Area, would be entitled to notice under Section 326 of the Act of 1916. But, that is an entitlement under the law for defendant No.1 before action is commenced. 46. Here, what this Court finds is that no plea was ever raised on behalf of defendant No.1 that the suit was not maintainable against them due to want of a notice under Section 326 of the Act of 1916. There is a passing mention, as already noticed in Paragraph No.42 of the written statement, that a notice under Section 80 of the Code, on incorrect facts, was served upon defendant No.1 by the plaintiffs and the suit instituted before expiry of the statutory period. There is a passing mention, as already noticed in Paragraph No.42 of the written statement, that a notice under Section 80 of the Code, on incorrect facts, was served upon defendant No.1 by the plaintiffs and the suit instituted before expiry of the statutory period. It has been remarked above that the bar under Section 80 of the Code to commencement of actions without service of a notice, in terms of the said provision, is applicable only in the case of a suit against the Government or one of its officials, as regards their acts done while discharging their official functions. Whether the suit was instituted without service of a notice under Section 80 of the Code or instituted prematurely without waiting for expiry of the statutory time, is none of defendant No.1's concern. This is a plea, which could be raised and proved on behalf of the Government and its officials. It is not a plea that is open to defendant No.1. 47. There is no quarrel on facts that a notice under Section 326 of the Code has not at all been served upon defendant No.1 before the suit was instituted. As already noticed, there is no plea regarding want of a notice under Section 326 raised in the written statement at all. No issue was framed at the instance of defendant No.1 before the Trial Court regarding the maintainability of the suit for want of notice under Section 326 aforesaid. No issue was framed to the above effect even after the plaint was amended by the plaintiff and an additional written statement filed on behalf of defendant No.1. 48. In the opinion of this Court, the failure to raise a plea regarding want of notice under Section 326 in the written statement, then in failing to get an issue framed on the point before the Trial Court, and also failing to raise a ground before the Lower Appellate Court in the first appeal, constitutes a waiver of the right to statutory notice under Section 326, otherwise mandatory. 49. The principle of waiver of a mandatory notice before commencement of action has been recognized over time by judicial authority in the context of the analogous provisions of Section 80 of the Code. 49. The principle of waiver of a mandatory notice before commencement of action has been recognized over time by judicial authority in the context of the analogous provisions of Section 80 of the Code. Analogous, this Court says, because the purpose of notice under Section 326 of the Act of 1916 and that under Section 80 of the Code is the same. The requirement of both these statutory notices is to extend protection from action in one case to the Government and its officers for their official acts, and in the other to municipal bodies constituted under the Act of 1916. Protection is given to these sovereign or statutory entities, because it is presumed that if the plaintiff has a case, upon service of the statutory notice and passage of the statutory time, the Government or the municipal body, as the case may be, may get an opportunity to accept the claim or so much of it as acceptable, eschewing unnecessary litigation for these Government bodies. The bar of the mandatory notice, therefore, either under Section 80 of the Code or Section 326 of the Act of 1916, is in the nature of a protection, available to the Government or the municipal body against abrupt commencement of action. The bar being in the nature of a protection, can always be waived, if not pleaded and proved. Once the bar under Section 326 of the Act of 1916 is not pleaded in the written statement, as already remarked, and during the subsequent course of proceedings also, in the opinion of this Court, it must be deemed to have been waived. It cannot be permitted to be raised for the first time in second appeal. In this connection, reference may be made to a decision of the Orissa High Court in State of Orissa and another v. Bamadeb Panigrahi and another, AIR 1971 Ori 227 , where in the context of a notice under Section 80 of the Code, it was observed by R.N. Mishra, J. (as the learned Chief Justice of India then was) : "9. That a notice under Section 80 of the CPC is mandatory and the question is no more open to doubt in view of the decision of their Lordships of the Supreme Court in AIR 1966 SC 1068 , Sawai Singhai v. Union of India. That a notice under Section 80 of the CPC is mandatory and the question is no more open to doubt in view of the decision of their Lordships of the Supreme Court in AIR 1966 SC 1068 , Sawai Singhai v. Union of India. Position was always well settled and as early as 1927 their Lordships of the Judicial Committee had also stated so. The decision of their Lordships of the Judicial Committee in AIR 1927 PC 176 , Bhagchand Dagdusa v. Secretary of State was approved in the aforesaid Supreme Court decision. But there is also another current of judicial thought which cannot be ignored. Courts have taken the view that the protection available under Section 80 of the CPC either to the State Government or a public officer can be waived and raising of a plea in the written statement and not joining an issue in the trial Court have been held to be waiver. In this Court there are two decisions directly on the point. In ILR (1959) Cut 258, Basudeb v. Padmanav, G.C. Das, J., held, "When an objection that a suit is not maintainable in the absence of a notice under Section 80 is not raised in the trial Court and no issue is joined on this point and the suit is decreed the plea as to want of notice must be deemed to have been waived and when the plea is taken for the first time in appeal, the appellate Court is not entitled to dismiss the suit on the ground of absence of notice under Section 80." 10. The same view has been reiterated by Barman, J., as he then was, in (1962) 4 O.J.D. 13, Anadi Charan Parida v. Banamali Muduli, considering a similar question which arose with reference to Section 49 of the Madras Court of Wards Act (I of 1902) which has the same language as Section 80 of the CPC, Viswanath Sastri, J., in AIR 1949 Mad 747, Venkataswami v. Mahalakshmi, held:-- "Waiver is an abandonment of a right and may be express or implied from conduct and to be effectual must be by a person who has full knowledge of the facts. A person who has taken a plea based on the want of notice to which he is entitled, may waive it and allow the action to proceed as though the required notice had been given to him and this can be done so long as the action is pending and has not been finally determined." 11. A Full Bench of the Rajasthan High Court in AIR 1959 Raj 126 (FB), Rajasthan State v. Girdharilal adopted the self-same view. They quoted with approval the observations of their Lordships of the Judicial Committee in AIR 1947 PC 197 , Vellayan Chettiar v. Government of the Province of Madras, where it was stated. "There appears to their Lordships to be no reason why the notice required to be given under Section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required; if in the particular case he does not require that protection and says so, he can lawfully waive his right." 12. In AIR 1958 SC 274 , Dhian Singh v. Union of India, their Lordships stated, "It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellant's claim nor was any issue framed in that behalf by the trial Court and this may justify the inference that the objection under Section 80 had been waived." 13. Mr. Justice Mitra of the Calcutta High Court in AIR 1960 Cal 270 , Lalchand v. Union of India stated, "If the provisions of law were waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver. When the litigant had, without mistake induced by the opposite party, taken a particular position in the course of litigation, he must act consistently with it, especially, if to allow him to do otherwise would prejudice the opponent. If Mr. Ghosh therefore wanted to rely on the invalidity or insufficiency of the notice under Section 80 of the CPC it was for him to raise a specific issue on this question." 14. Reliance was placed by Mitra, J., on an earlier decision of their Court in (1907) ILR 84 Cal 257, Manindra Chandra Nandi v. Secretary of State. If Mr. Ghosh therefore wanted to rely on the invalidity or insufficiency of the notice under Section 80 of the CPC it was for him to raise a specific issue on this question." 14. Reliance was placed by Mitra, J., on an earlier decision of their Court in (1907) ILR 84 Cal 257, Manindra Chandra Nandi v. Secretary of State. To the self-same effect there is an authority in (1913) 17 Cal WN 64, Bhola Nath Ray v. The Secretary of State for India in Council. In the present case a plea was taken in the written statement, but a suitable issue on this aspect was not raised nor has this point been canvassed in the trial Court. Though in the lower appellate court a ground was in the memorandum of appeal on this question it does not seem to have been canvassed, nor is it alleged in this Court that such a point was raised in the lower appellate court and the learned Appellate Judge has omitted to refer to it. In such circumstances and in view of this state of the legal position I think the contention that the suit is bad for notice cannot be permitted to be mooted. The telegram notice is Ext. 6. It is certainly not in conformity with the requirement of Section 80 of the CPC. Besides, the provision in the Code that "the plaint shall contain a statement that such notice has been so delivered or left" does not appear to have been satisfied. If this provision was deemed to be mandatory so that its compliance could not be waived by that category of defendant to whom Section 80 of the CPC applies, the position must have been different. But in view of the series of decisions referred to above, I do not propose to take a different view. The plea of want of notice cannot be permitted to be raised for the first time in second appeal to the prejudice of the plaintiff who is bound to lose if the plea is now raised and he is nonsuited on that technical score." 50. The plea of want of notice cannot be permitted to be raised for the first time in second appeal to the prejudice of the plaintiff who is bound to lose if the plea is now raised and he is nonsuited on that technical score." 50. The principle of waiver with regard to a notice under Section 80 of the Code has also been approved by the Supreme Court in Dhian Singh Sobha Singh and another v. Union of India, AIR 1958 SC 274 , when the plea was not taken in the Trial Court and no issue was framed. The decision in Dhian Singh Sobha Singh (supra) was followed by the Madras High Court in Munuswami Chetty and others v. Commissioner, H.R.&C.E. (Admn.) Madras-34 and others, AIR 1993 Mad 144 . 51. The issue again fell for consideration of the Supreme Court in the context of a case of waiver of notice under Section 80 of the Code in State of A.P. and others v. Pioneer Builders, A.P., (2006) 12 SCC 119 . In State of A.P. v. Pioneer Builders, A.P. (supra), it was held : "19. ....... The High Court has held that having participated in the original proceedings, it was not now open to the State to raise a fresh issue as to the maintainability of the suit, in view of waiving the defect at the earliest point of time. The High Court has also observed that knowing fully well about non-issue of notice under Section 80 CPC the State had not raised such a plea in the written statement or additional written statement filed in the suit and, therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not necessarily depends on the facts of each case and is liable to be tried by the court, if raised, which, as noted above, is not the case here." 52. The principles that apply to a waiver of notice under Section 80 of the Code, in the opinion of this Court, apply to Section 326 of the Act 1916 as well. The principles that apply to a waiver of notice under Section 80 of the Code, in the opinion of this Court, apply to Section 326 of the Act 1916 as well. This Court, on the facts here, including the pleadings, has already remarked that it is a case where the plea regarding service of a notice under Section 326 of the Act of 1916 has not been raised at all in the written statement, or an issue framed about it. The plea has not been raised before the Lower Appellate Court. In the opinion of this Court, therefore, the plea regarding want of a notice under Section 326 of the Act of 1916, cannot be accepted, as the notice would stand waived. 53. Substantial Question of Law (a) is, therefore, answered in the manner that whereas the provisions of the Act of 1916 would apply to a Town Area Committee, including the provisions of Section 326 of the Act of 1916, that ought to be complied with, but in the absence of a plea regarding a bar to the suit for non-compliance of Section 326 aforesaid being raised in the written statement or at an early stage before the Trial Court, the bar would stand waived. Substantial Question of Law (b) 54. It is argued by the learned Counsel for defendant No.1 that the suit property was recorded as Pajawa and, therefore, under Section 116 of the Act of 1916 would be deemed to have vested in defendant No.1. Learned Counsel for defendant No.1 has drawn the Court's attention to Section 116 of the Act of 1916, which reads : "116. Property vested in Municipality. Learned Counsel for defendant No.1 has drawn the Court's attention to Section 116 of the Act of 1916, which reads : "116. Property vested in Municipality. - Subject to any special reservation made by the State Government, all property of the nature hereinafter in this section specified and situated within the municipal area shall vest in and belong to the Municipality, and shall, with all other property which may become vested in the Municipality, be under its direction, management and control, that is to say, - (a) all public town walls, gates, markets, slaughter-houses, manure and nightsoil depots and public buildings of every description which have been constructed or are maintained out of the municipal fund; (b) all public streams, lakes, springs, tanks, wells and works for the supply, storages and distribution of water for public purposes and all bridges, buildings, engines, materials and things connected therewith or appertaining thereto, and also any adjacent land not being private property appertaining to any public tank or well; (c) all public sewers, drains, culverts and water-courses, and all works, materials and things appertaining thereto; (d) all dust, dung, nightsoil, ashes, refuse, animal matter or filth or rubbish of any kind, or dead bodies of animals collected by the Municipality from the streets, houses, privies, sewers, cesspools or elsewhere or deposited in places appointed by the Municipality under Section 273; (e) all public lamps, lamp posts and apparatus connected therewith or appertaining thereto; (f) all land or other property transferred to the Municipality by the Government or by gift, purchase or otherwise for local public purposes; and (g) all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets." (emphasis by Court) 55. It is next submitted that the orders made in the mutation proceedings, that were finalized in the years 1974-75 against the plaintiffs, was sufficient to dislodge the plaintiffs' claim in this suit instituted in the year 1986. This is so because mutation entries are conclusive proof of possession over land and, therefore, on the date of institution of the suit in the year 1986, defendant No.1 must be held in possession. This is so because mutation entries are conclusive proof of possession over land and, therefore, on the date of institution of the suit in the year 1986, defendant No.1 must be held in possession. The subsequent conversion of the suit from one of permanent prohibitory injunction into a suit for demolition and possession, shows that the plaintiffs were not in actual physical possession of the suit property on the date the suit was instituted. Therefore, the suit must fail. It is also urged on behalf of defendant No.1 that the Lower Appellate Court has in manifest error passed a decree for preparation of a Kura, whereas the suit was not one for partition, but demolition and possession. 56. The learned Counsel for the plaintiffs submits that the suit property never vested in the Gaon Sabha, because all along it has been recorded a Pajawa and the Khatauni shows it to be a non-agricultural land. It always remained recorded in the name of the plaintiffs' predecessor-in-title and their ancestors. The suit property never having vested in the Gaon Sabha, upon extension of boundaries of defendant No.1, the suit property would not automatically vest in the said defendant. Learned Counsel for the plaintiffs has taken this Court through the findings of the Courts below regarding the mutation case and the relative record to say that Mutation Case No.8 of 1975-76 did not at all relate to Khasra No.216. He has invited the Court's attention to the findings recorded by the Trial Court while answering Issue No.1 and also the record. It is pointed out that the findings recorded in the mutation case related to other Khasra numbers. It is also argued that so far as the suit property is concerned, niether in law nor in point of fact, it ever vested in the State and through them in the Gaon Sabha; and, finally in defendant No.1. 57. The substantial question of law that has been raised is that the suit property by its nature being a Pajawa would automatically vest in the State and thence in the Gaon Sabha, from whom defendant No.1 acquires title. 57. The substantial question of law that has been raised is that the suit property by its nature being a Pajawa would automatically vest in the State and thence in the Gaon Sabha, from whom defendant No.1 acquires title. The submission, therefore, is that the suit property has to be treated as vested in the State on the date of vesting under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 (for short, 'the Act of 1951') by operation of law, once it is held that the suit property is recorded as Pajawa. The alternate submission appears to be, though not very relevant to the substantial question of law under consideration, that even if the suit property is not vested in the Gaon Sabha, upon the publication of a notification under Section 4 of the Act of 1951, the said property would vest in defendant No.1 by virtue of Section 116 of the Act of 1916. 58. This Court must remark here that defendant No.1 has not been consistent about the manner in which title to the suit property came to be vested in them. It hardly brooks doubt that the suit property prior to the abolition of zamindari was vested in the ancestors of the plaintiffs/ predecessors-in-title, and, thereafter, remained recorded in the name of the plaintiffs' vendors. There seems to be a gasping struggle by defendant No.1 to prove that somehow or the other, the suit property has come to be vested in them. The Trial Court has noticed this in its findings on Issue Nos.1 and 2 both, which show that impermissible inconsistent pleas on non-existing evidence have been urged to establish defendant No.1's title and possession to the suit property. One is the case that the suit property being recorded a Pajawa, it vested in the State, free from all encumbrances upon the notification under Section 4 being issued under the Act of 1951. And, from the Gaon Sabha, it stood automatically vested in the successor local body, to wit, defendant No.1 upon the extension of its boundaries. It is this case, which is the subject matter of consideration in terms of Substantial Question of Law (b). 59. The other case is that the suit property was acquired by the State for defendant No.1 and that is how they have acquired title. It is this case, which is the subject matter of consideration in terms of Substantial Question of Law (b). 59. The other case is that the suit property was acquired by the State for defendant No.1 and that is how they have acquired title. This case of defendant No.1 has been rejected by the Trial Court and affirmed in appeal by the Lower Appellate Court with the remark that there is no evidence on record to show that proceedings for acquisition were ever taken relating to the suit property and compensation paid to the person entitled. In this regard, the testimony of DW-1 has been considered and the absence of any documentary evidence about acquisition noticed to record a failure of defendant No.1 to discharge their evidential burden on the point. 60. A corollary to the defendants' alternate pleas is that whichever way title and possession to the suit property came to the defendants, the name of defendant No.1 was mutated in the revenue records vide order dated 20.11.1975 passed in Mutation Case No.8 of 1975-76, whereagainst a revision carried by the predecessor-in-interest of the plaintiffs' vendors was dismissed by the Commissioner, Agra Division, Agra vide order dated 25.08.1976. This part of the case again is not squarely the subject matter of the substantial question built on the edifice of undisputed title claimed by defendant No.1, which has been acknowledged by the revenue authorities, as also their possession, by granting them mutation in the revenue records after mutating out the name of the plaintiffs' predecessor-in-interest, said to have been got fraudulently mutated. The evidence on this point too has been meticulously examined by both Courts below, with the Trial Court, in particular, returning a finding of fact that Mutation Case No.8 of 1975-76 relates to Khasra Nos.240, 241 and 242 that were acquired by defendant No.1 through the State, but there was neither acquisition of Khasra No.216 nor 218, nor was the mutation order passed in Mutation Case No.8 of 1975-76, one in relation to Khasra No.216. Since all these inconsistent pleas set up by defendant No.1, somehow to wrench title to the suit property from the plaintiffs, have been discarded by both Courts below consistently, this Court has remarked earlier that there has been a desperate effort to establish their title and possession by defendant No.1 - indeed a gasping one. 61. Since all these inconsistent pleas set up by defendant No.1, somehow to wrench title to the suit property from the plaintiffs, have been discarded by both Courts below consistently, this Court has remarked earlier that there has been a desperate effort to establish their title and possession by defendant No.1 - indeed a gasping one. 61. The other limb of the submission that the suit property even if not vested in the Gaon Sabha, upon publication of the notification under Section 4 of the Act of 1951, would vest in defendant No.1 by virtue of Section 116 of the Act of 1916, cannot be accepted. The reason is that Section 116(d), which has been pressed in aid by defendant No.1 to claim a deemed vesting of the suit property in them, relates to ashes, besides other things of a similar genre, like dust, dung, nightsoil- all that is found in streets, houses, privies, sewers, cesspools or elsewhere. This provision at the most may entitle defendant No.1 to claim rights over ash that was produced in the Pajawa when it was functional and dumped on the suit property or a part of it. Section 116(d) of the Act of 1916 does not lead to a vesting of any right or title relating to immovable property in a Nagar Palika or the Local Body, governed by the Act aforesaid. It relates to conferment of title upon the Local Body over certain kinds of waste products mentioned there. The contention of defendant No.1, therefore, that dumped ash on the suit property would lead to vesting of the suit property itself in the said defendant under Section 116(d) of the Act of 1916 cannot be countenanced. 62. Accordingly, the substantial question is answered in the manner that the entry in the revenue records for the suit property as Pajawa is not at all conclusive proof of automatic vesting thereof, either in defendant No.1, or the State, and further that for the said reason, the findings recorded by the Courts below on the issue of title and ownership to the suit property are unexceptionable in law. B. Second Appeal No.26 of 2020 Substantial Question of Law (i) 63. It is argued by Mr. B. Second Appeal No.26 of 2020 Substantial Question of Law (i) 63. It is argued by Mr. Preet Pal Singh Rathore, learned Counsel for the plaintiffs that the direction made by the Lower Appellate Court for the payment of costs of constructions raised by defendant Nos.4 to 7 on the part of the suit property, of which the plaintiffs have been directed to be given possession, is manifestly illegal in the absence of a cross-objection to the Trial Court's decree in that behalf by defendant No.4. 64. Learned Counsel appearing for defendant No.1, through whom defendant Nos.4 to 7 have claimed title and possession to the suit property and raised constructions thereon, argues that the power of the Appellate Court under Order XLI Rule 33 of the Code is wide enough to clothe it with the power to pass any decree or order, which ought to have been made. He submits, in short, that in order to do justice between parties, the power, even if no cross-objection is filed for the purpose by a respondent to the appeal under Order XLI Rule 22 of the Code, is decidedly available with the Court. 65. No doubt, the power of the Appellate Court is very wide under Order XLI Rule 33 of the code and the jurisdiction of the Appellate Court to interfere with a decree, vary or modify it, as to a part of it, in the absence of a cross-objection under Order XLI Rule 22 of the Code, has been the subject matter of considerable judicial debate. Nevertheless, the power of the Appellate Court in the absence of a cross-objection by the respondent under Order XLI Rule 22 of the Code has been acknowledged of course subject to well settled restrictions. In this connection, reference may be made to the observations of the Supreme Court in K. Muthuswami Gounder v. N. Palaniappa Gounder, (1998) 7 SCC 327 , where it has been held : "12. Order 41 Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises (sic out of) one of the judgments of the lower court and in that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir v. Madan Mohan [1987 Supp SCC 528 : AIR 1988 SC 54 ]. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41 Rule 33 CPC and each case must depend upon its own facts. The Rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this Rule holds good notwithstanding Order 41 Rule 33 CPC. However, in exceptional cases, the Rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal........." (emphasis by Court) 66. An authoritative statement of the law on the issue is to be found in Banarsi and others v. Ram Phal, (2003) 9 SCC 606 , where their Lordships of the Supreme Court held : "15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41." (emphasis by Court) 67. Here, this Court finds that the reason assigned by the Lower Appellate Court to vary the decree of demolition, and, instead, granting a decree for valuing those constructions as fall on the part of the land for which possession has been decreed, to be valued on the date these were raised and the price of constructions paid by the plaintiffs to defendant Nos.4 to 7, rests on the edifice that defendant Nos.4 to 7 raised these constructions under the belief that this part of the suit property was owned by defendant No.1. This belief, in turn, came about in consequence of the letter of the Collector, Mathura purporting to give this land to the Police. 68. The constructions were raised by defendant No.4 pending suit, which necessitated the amendment of the plaint seeking a decree for possession after demolition of those constructions. There was a temporary injunction in operation, and, obviously, on the other findings, which the Lower Appellate Court has not disturbed, the constructions in question were raised in violation of a temporary injunction passed by the Court. In any case, the constructions were raised pendente lite on the part of the suit property, of which both the Courts have found the plaintiffs to be holders of title, entitled to a decree of possession. The plaintiffs have also been found to be in possession of the suit property on the date the suit was instituted. 69. In view of the said findings, the Lower Appellate Court has not at all exercised powers within the settled parameters of Order XLI Rule 33 of the Code to vary the decree of demolition, substituting it by a direction to the plaintiffs to pay for the constructions raised. The constructions were, on the concurrent findings of the Courts below, raised without title by defendant No.4, disturbing the plaintiffs' possession. What inequity could arise by directing the demolition to be carried out is hardly discernible. A misplaced faith on the Collector's letter, transferring the property to the Police Department, is no reason to tax the plaintiffs with paying for an infraction committed by defendant No.4, employing or rather misusing the police power of the State available at his command and raising forcible constructions on property that did not belong to defendant No.1; and a fortiori, to defendant Nos.4 to 7. The decree passed by the Trial Court is not in any way inconsistent; rather, the decree of possession is pre-eminently compatible with a decree for demolition to remove all that encroachment that defendant No.4 has made pending suit. 70. There is an added reason not to vary the decree in any manner in favour of defendant Nos.4 to 7. Defendant No.4, out of these defendants, who contested the suit, did not appeal the Trial Court's decree. It was defendant No.1 alone that appealed the decree. Therefore, to direct some benefit to be given to defendant Nos.4 to 7 by the Lower Appellate Court is absolutely without basis. It would have been different if defendant No.4 had also appealed, may not by seeking relief of the kind that the Lower Appellate Court has granted them. 71. Before recording our conclusions on this question, this Court thinks that the record ought to be set straight by clarifying that the words 'counter claim', employed in the present substantial question of law, appear to be the product of a clerical error. In the considered opinion of this Court, the words 'counter claim' occurring in this question have to be read and understood as ''cross-objection'. In conclusions, this substantial question of law is answered in the negative and it is held that given the parameters, on which power under Order XLI Rule 33 of the Code is to be exercised, in the absence of a 'cross-objection' under Order XLI Rule 22 of the Code, the Lower Appellate Court was not at all justified in granting relief to the defendants (defendant Nos.4 to 7) to recover costs of the constructions from the plaintiffs, the former raised in encroachment. 72. Before curtains are drawn on this appeal, it must be mentioned in the passing that Substantial Question of Law (ii) recorded in the Court's order dated 06.01.2020 is not at all a question. That appears to be a direction to list the appeal for hearing. It has been shown as a question and assigned a number, again due to some kind of a clerical or typographical error. 73. In the result, Second Appeal No.108 of 2008 fails and is dismissed with costs. Second Appeal No.26 of 2020 is allowed with costs. That appears to be a direction to list the appeal for hearing. It has been shown as a question and assigned a number, again due to some kind of a clerical or typographical error. 73. In the result, Second Appeal No.108 of 2008 fails and is dismissed with costs. Second Appeal No.26 of 2020 is allowed with costs. The decree passed by the Lower Appellate Court to the extent it directs the plaintiffs to pay defendant Nos.4 to 7 costs of the constructions raised by them on the suit property is set aside and the Trial Court's decree is restored. 74. Let separate decrees be drawn up in both appeals in the aforesaid terms.

Nagar Kshetra Samiti Thru Office Incharge/Chairman v. Kanchan Singh