Allahabad High Court
Chandrajit vs Baliram (Dead) And 6 Others on 22 November, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 251 of 2019 Appellant :- Chandrajit Respondent :- Baliram (Dead) And 6 Others Counsel for Appellant :- Kamal Narain Rai Hon'ble Vivek Agarwal,J.
Heard Sri Kamal Narain Rai, learned counsel for the appellant.
This appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff-appellant being aggrieved by judgment and decree dated 15.11.2018 passed by the Additional District Judge/F.T.C., Court No.2, Mau in Civil Appeal No.13 of 2016 affirming the judgment and decree passed in the original Suit No.176 of 1996 passed on 06.04.2016 by the Court of Civil Judge (Junior Division), Pargana- Ghosi Tehsil Sadar, District- Mau.
Claim of the appellant is that plaintiffs are having a residential house; since the times of their ancestors they started using the disputed land which is subject matter of the suit as "Sahan". It is submitted that in terms of the provisions contained in Section 9 of U.P. Zamindari Abolition and Land Reforms Act, 1950(1) of 1951 (hereinafter referred to as Act of ''1950'), the land in question being used by them as "Sahan" has vested in them and now, neither they can be dispossessed nor any third party can cause any interference in their peaceful possession.
Learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in case of Shreepat Vs. Rajendra Prasad as reported in 2000 (6) SCC 389 wherein it has been held that when defendant disputes the identity of the property alleging that the property was not the part of Khasra number stated in the plaint then decree could not have been passed by the Court only on the basis of the oral evidence. The Court should have appointed Survey Commission for identification and de-marcation of the land. Reliance has also been placed on another judgment of Allahabad High Court passed in case of Mata Prasad Singh @ Dippu Singh and another Vs. Anjani Kumar Tiwari and another as reported in 2008 (10) ADJ 600. Placing reliance on this judgment, it is submitted that in a suit for perpetual injunction against defendant-appellant restraining them from interfering in physical possession over land in dispute and to restrain them from raising construction, suit decreed by the Trial Court on the basis of title "unknown". It is held that question whether plaintiffs-respondents could avail benefits of Section 9 of U.P.Z.A. & L.R. Act, when plaintiffs' witnesses have admitted that there was no construction in existence over disputed land was considered to be sufficient matter for setting aside the impugned judgments and dismissing the suit of the plaintiff.
Before adverting to the arguments as has been advance by learned counsel for the appellant-plaintiff, it is necessary to advert to certain facts that while deciding the appeal, a issue was framed as to whether defendants have raised any illegal construction on the disputed land which appellant-plaintiff is entitled to get removed.
It has also come on record that plaintiff's witness P.W.-1, Charanjeet Rajbhar has admitted that said land is about 100 yards away from his house at village and there exists a chack between the disputed land and the village. He has also admitted that after Chakbandi, land was declared as Abadi land though it was plaintiff's land prior to chakbandi.
In view of such facts and also an admitted fact that in the Naksha Nazri, house of the plaintiff has not been shown in the close vicinity of the disputed land, which is one of the essential ingredients to invoke the provisions of Section 9 of the Act of 1950. Land of the person claiming interest should have a house appurtenant to it, then only such land can be treated to have vested in the owner of such house in terms of the provisions contained in Section 9 of the Act of 1950.
In fact, in case of Bhudan Singh and another Vs. Nabi Bux and another as reported in 1969 (2) SCC 481 the Court has dealt with the scope of Section 9 of the Act of 1950. Paragraph Nos.4 and 13 are relevant to understand and appreciate the issue raised in the present appeal which are reproduced hereinunder:-
Para-4:- "Section 9 of the Act, the section with which we are concerned in this case, reads thus:
4." All wells, trees in abadi and all buildings situated within the limits of an estate, belonging to or held by an intermediary or tenant or other persons, whether residing in the village or not, shall continue to belong to or be held by such intermediary or tenant or person, as the case may be, and the side of the wells or the buildings within the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."
Para-13:- "The expression "held" has been used in the Act in various other sections-see Section 2(1)(c), 13, 17, 18, 21, 144, 204, 240A, 298, 304 and 314 to connote possession by legal title. Mr. Misra, learned Counsel for the appellants does not deny that the expression"held" in those sections means held lawfully. But according to him that is because of the context in which the word is used. Mr. Misra is right in saying so but he overlooks the context in which that expression is used in Section 9. We have already made reference to that context. He failed to point out to us any section in the Act, leaving aside Section 9 for the time being where the word "held" has been used as meaning mere holding, lawful or otherwise. In K.K. Handique v. The Member, Board of Agricultural Income Tax, Assam this Court was called upon to consider the meaning of the word "holds" in Sections 12 and 13 of the Assam Agricultural Income Tax Act. Subba Rao, J. (as he then was) speaking for the Court observed that the expression "holds" includes a two-fold idea of the actual possession of a thing and also of being invested with a legal title though some times it is used only to mean actual possession. After reading Section 12 and 13 together he observed that the word "holds" in those sections means holding by legal title. In Eramma v. Verrupanna and Ors. this Court considered the meaning of the word"possessed" in Section 14(1) of the Hindu Succession Act which laid down that "any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner". It held that the property possessed by a female widow, as contemplated in the section, is clearly a property to which she has acquired some kind of title whether before or after the commencement of the Act. It is true that in arriving at that conclusion the Court took into consideration the language of the provision as a whole and also the explanation to the section. The scheme of the Act is to abolish all Estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or buildings. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9, we are of opinion that the word "held" in Section 9 means "lawfully held". In other words we accept the correctness of the view taken by Mukerji and Dwivedi, JJ. For the reasons already mentioned we are unable to agree with Desai, C.J. that the fact that the appellants had demolished the buildings put up by the respondents and put up some other building in their place had conferred any rights on them under Section 9."
Thus, it is apparent that Hon'ble Supreme Court has held that the word "held" used in Section 9 means "law fully held". The possession of the lands or buildings should be on the basis of some legal title.
Similarly in case of Gafoor and others Vs. Abdul Rashid and others as reported in 1980 Alld. L.J. 838 interpreting Section 9 of the Act of 1950, it has been held that claimant must show that land is necessary for the enjoyment of his building.
Similarly in case of Chhadami and another Vs. Udain and another as reported in 1983 Alld. L.J. 365, it has been held that if the suit land is not appurtenant to the house within the meaning of the Act, then it can be said that plaintiff's ownership and possession of the land is not proved and the suit for injunction is not maintainable.
In view of such legal position, it is apparent that the facts of the case of Mata Prasad Singh @ Dippu Singh and another(supra) are different and not applicable to the facts and circumstances of the present case.
Similarly, the law laid down in case of Shreepat (supra) is again of no assistance to the appellant inasmuch as in that case there was a dispute as to the identification and demarcation of the land.
In the present case, dispute is whether the suit land is appurtenant to the property of the plaintiff-appellant and whether such property cannot be enjoyed by the appellant in case suit land is not vested in the appellant in terms of Section 9 of the Act of 1950.
In the context of the present case, when the meaning of words "appurtenance" or "appurtenant" is examined then as per Black's Law Dictionary, 9th Edition, they are defined as under:
Appurtenance, "The word appurtenances; which in former time at least was generally employed in deeds and leases is derived from the word apparentir which is Norman French and means to belong to. Speaking broadly, the word means anything corporeal or incorporeal which is an incident of, and belongs to some other thing as principal. At a time when the construction of conveyances was of a more technical character than it is at present the word was considered of much greater importance than it is now and it was considered that in its absence from a lease or other conveyance a very restricted meaning should attach to the words of the description of the premises conveyed."
Appurtenant, "adj. (14c) Annexed to a more important thing- Also termed (in scots law) part and pertinent."
Thus, "appurtenant" means Annexed to a more important thing.
Word "Annex" is defined in Black's Law Dictionary, 9th Edition, as under:-
"annex,n. (16c) something that is attached, such as a document to a report or an addition to a building."
Thus definition of "appurtenant" and "annex" when read conjointly means that piece of land which is attached to and an addition to a building.
Admitted position is that the land in question is about 100 yards away from the house of the plaintiff as has been admitted by P.W.-1, Charanjeet Rajbhar.
There is no evidence that such land is legally held as has been laid down to be a requirement by the Hon'ble Supreme Court in case of Bhudan Singh and another (supra). There is no evidence that the house of the plaintiff is appurtenant to the said land and therefore provisions of Section 9 of the Act of 1950 in absence of these requirements are not attracted and therefore concurrent findings of fact do not call for any interference.
The Second Appeal fails and is, accordingly, dismissed.
Order Date :- 22.11.2019 Ashutosh