Allahabad High Court
Rajendra Prasad vs Gaon Sabha Sambharpur And 6 Others on 6 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2382
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 1140 of 2019 Appellant :- Rajendra Prasad Respondent :- Gaon Sabha Sambharpur And 6 Others Counsel for Appellant :- Ram Sajiwan Mishra Hon'ble Vivek Agarwal,J.
Heard Sri Ravi Kant, learned Senior Advocate assisted by Sri Ram Sajiwan Mishra, for the appellant.
This Second Appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 06.11.2019 passed by the Additional District Judge, Court No.6, Kanpur Nagar in Civil Appeal No.100 of 2018, Gaon Sabha, Hindupur Vs. Rajendra Prasad and others arising out of Case No.938 of 1994.
It is submitted that the 1st Appellate Court reversed the finding of the Trial Court as were recorded by it vide judgment and decree dated 09.01.2017 passed in Original Suit No.938 of 1994, Rajendra Prasad son of Gauri Shankar Vs. Sunder Vilas and others whereby suit for permanent injunction was decreed by the Trial Court.
Learned counsel for the appellant submits that in the present case, respondent no.1 had conceded the claim of the plaintiff-appellant and had specifically mentioned in their written statement that plaintiff is in possession and Holder of the suit property. They have no concern with the said property. Thereafter, an application bearing No.159(A-1) was filed by the plaintiff for deleting the names of defendant nos.1/1 to 1/6 and said application was accepted by the Trial Court. Defendant no.2 Kanpur Development Authority was proceeded ex parte vide order dated 19.10.2012. Respondent No.3, Gaon Sabha Gram-Hinduupr had filed a written statement stating therein that the dispute is essentially between the plaintiff and the defendant no.1 and there is no dispute with the defendant no.3 i.e. the Gaon Sabha.
In view of such concessions, as have been recorded by the Trial Court, Trial Court decreed the suit and granted a decree of injunction asking the defendants to not to interfere in the peaceful possession of the plaintiff. It also injuncted them from carrying out any illegal construction or to remove any structure already existing on that piece of land. An appeal was filed by the Gaon Sabha in which a specific stand was taken that plaintiff was required to stand on its own legs and Issue no.1 as was framed by the Trial Court namely "Kya wadi vivadit sampatti ka malik, Kabij va Dakhil hai ?" was not considered in its true earnest and, suit has been decreed on the basis of concession and evasive reply filed by the then Gram Pradhan.
Learned counsel for the appellant has drawn attention of this Court to the judgment of the High Court passed in Civil Misc. Writ Petition No.12552 of 1994, Rajendra Prasad and others Vs. Collector, Kanpur Nagar and others passed on 17.12.2003. It is pointed out that present appellant Rajendra Prasad by way of filing Civil Misc. Writ Petition No.12552 of 1994 had challenged the validity of the orders dated 30th September, 1993 and 28th December, 1993 passed by the respondent Nos.1 and 2 therein by means of which proceedings undertaken under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the ''Act'), 1950 has been decided and directives were issued for ejectment of the petitioner i.e. the present appellant and payment of damages.
It is submitted that though the said writ petition challenging the orders passed in the proceedings undertaken under Section 122-B of the Act of 1950 were dismissed, however, it is submitted that High Court had observed that leave was granted to him to not to be evicted and for filing a suit for declaration as disputed question of facts were held to be not within the domain of the Writ Court as is apparent from page-113 internal page-6 of the judgment.
The total emphasis of the learned counsel for the appellant is that once, there was a concession by the respondent no.1, respondent no.2 was proceeded ex parte and respondent no.3 Gaon Sabha had conceded that it had nothing to to with the dispute, plaintiff-appellant was precluded from leading evidence to show his title. Therefore, the Trial Court had rightly decreed the suit in favour of the plaintiff-appellant and the findings of reversal are perverse and gives rise to substantial question of law therefore this appeal should be admitted.
After hearing learned counsel for the appellant it will be just and proper to refer to the provisions contained in Section 122-B of the Act of 1950 which deals with the powers of the Land Management Committee and the Collector.
Sub-section-1 of Section 122-B provides that where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise then in accordance with the provisions of this Act, the Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
Sub-Section-3 of Section 122-B provides that the Assistant Collector after issuing a notice under sub-Section-2 to the concerned wrong-doer, can decide the case for eviction from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.
Sub-Section 4-A of Section 122-B provides for a remedy to the aggrieved party before the Collector on the grounds mentioned in Clauses 8(a) to (e) of Section 333.
Sub-section 4-D of Section 122-B provides that any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this Section may file a suit in a Court of competent jurisdiction to establish the right claimed by him in such property.
It is apparent that for this reason, the Writ Court has refused to entertain the writ petition and same was dismissed vide order dated 17.12.2003.
Before adverting to the further submissions, it will not be out of place to mention that though sub-Section-4-A of Section 122-B provides that a revision before the Collector on the grounds mentioned in Clause-(a) to (e) of Section-333 but there are only three Clauses in Sections 333 from (a) to (c).
A bare perusal of the judgment passed by the Trial Court reveals that concession by respondent no.1 was only in regard to possession and not in regard to the title. The requirement of the law is that the plaintiff was required to prove its title. Similarly, mere statement by the respondent no.3-Gaon Sabha that controversy is essentially between the plaintiff and the defendant no.1 could not have absolved the Trial Court of its responsibility to ask the plaintiff to prove its title in terms of the Issue no.1 which was framed by the Trial Court because it has three words included namely "Malik (title), Kabij and Dakhil (possession)". Only possession was conceded by the respondent no.1 and therefore the plaintiff was required to stand on its own legs and prove its title.
In this regard, 1st Appellate Court has adverted to the evidence of D.W.-2 and has recorded a finding which remains unrebutted that the land contained in R.G. Nos.272, 275 is a government land and it was acquired by the Government and after that name of Kanpur Development Authority has been recorded in the revenue records.
Thus, the plaintiff was under obligation to prove his title to the land, over which he was claiming his possession and for which he had filed a suit for injunction. It is also apparent that suit was filed only for injunction and he had not filed a suit for declaration seeking a declaration that he is the owner of the land in dispute.
In view of such facts, when plaintiff had failed to prove his title over the suit land therefore, the 1st Appellate Court was not in error in allowing the appeal filed by the Gaon Sabha because for the failure of the plaintiff to prove his title, no relief of injunction could have been granted.
At this juncture, it will not be out of place to mention that it is not the case of the plaintiff that even as an encroacher, he could not have been removed from the suit premises without following the due process of law. Even if that plea would have been taken then it is apparent from the record that due process of law was followed inasmuch as proceedings were drawn and completed under the provisions contained in Section 122-B of the Act of 1950.
In view of such facts, plaintiff having failed to prove his title is not entitled to any equitable relief and therefore the impugned judgment and decree passed by the 1st Appellate Court does not call for any interference as no substantial question of law arises in this appeal for adjudication.
The Second Appeal fails and is, accordingly, dismissed.
Order Date :- 6.12.2019 Ashutosh