Allahabad High Court
Radhey Shyam And 3 Others vs Kunwar Pal And Another on 24 October, 2019
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- SECOND APPEAL No. - 993 of 2019 Appellant :- Radhey Shyam And 3 Others Respondent :- Kunwar Pal And Another Counsel for Appellant :- Sanjay Kumar Dubey,B.B.Rai Counsel for Respondent :- Sumit Daga Hon'ble Jayant Banerji,J.
Heard Shri B.B. Rai, learned counsel for the appellants and Shri Sumit Daga, learned counsel appearing for the respondent no. 1.
This appeal has been filed against the judgement and decree dated 30.8.2019 and 5.9.2019 respectively passed by the Additional District Judge, Court No. 2, Hathras in Civil Appeal No. 6 of 2014 (Kunwar Pal and another Vs. Radhey Shyam and others).
The plaintiff-appellants filed a suit for permanent injunction being Original Suit No. 430 of 2009 for restraining the defendant-respondents from evicting them from the property in dispute forcibly. The suit was filed, inter alia, on the ground of adverse possession. The suit was filed on 31.8.2009 in which the statement appearing in paragraph no. 6 of the plaint stated that the cause of action first arose on 20.8.2009 when the defendant-respondents tried to forcibly evict the plaintiff-appellant from the property in dispute. A written statement was filed on behalf of the defendants wherein they claimed title to the land on the basis of an allotment made in their favour.
It was stated in the written statement that since the plaintiff-appellant was forcibly occupying the property in dispute, an application was filed before the Sub-Divisional Magistrate on 30.1.2009 under Section 198A(2) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the 'UPZALR Act'). It was alleged that thereafter with the intent of not handing over the possession of the property in dispute, the aforesaid suit was instituted on 31.8.2009 and as such the suit is not maintainable. It was further stated by means of an order dated 27.8.2012 passed by the Court of Sub-Divisional Magistrate under Section 198A(2) of the UPZALR Act, a fine of Rs. 1,000/- each was imposed on the plaintiffs.
The trial court framed 10 issues and held that the possession of the plaintiff-appellant appeared over the property in dispute and as such the suit was decreed.
In the appeal filed by the defendant-respondents before the lower Appellate court, though no points for determination were framed under Order 41 Rule 31 of C.P.C., but, a perusal of the judgement reveals that it had duly considered the issue of title and possession of the plaintiff-appellant with regard to the property in dispute.
Learned counsel for the appellant has contended that the suit was filed seeking an injunction for not evicting the plaintiff-appellant forcibly from the property in dispute. It is contended that a perusal of the order passed by the Court of Sub-Divisional Magistrate in proceedings under Section 198A(2) of the UPZALR Act as well as the report of the Amin which have been enclosed respectively as Annexure Nos. 5 and 4 to the affidavit filed along with this appeal, demonstrates that the plaintiff-appellant was in possession of the property in dispute. It is further contended that the plaintiff-appellants were in possession over the land in dispute for a very long time and the court of Sub-Divisional Magistrate observed in its order that the allotment was wrongly made and, therefore, the plaintiff-appellant is entitled to the relief claimed.
Learned counsel for the respondents, on the other hand, has referred to the judgement of the lower Appellate Court in which specific reference has been made to the order of the Sub-Divisional Magistrate, that material concealment of facts were made by the plaintiff-appellant in the suit. It is further contended that as is evident from the order of the Sub-Divisional Magistrate dated 27.8.2012, the finding therein is that since all the allottees (the defendant-respondents) are in possession over the property in dispute. It is further contended that the report of the Amin that has been relied upon by the learned counsel for the plaintiff-appellant is of 5.9.2009 which is during the pendency of the proceedings before the Sub-Divisional Magistrate.
The plaint and the written statement clearly reveal that the factum of pendency of the proceedings before the Court of Sub-Divisional Magistrate under Section 198A(2) of the UPZALR Act were concealed by the plaintiff-appellant. The suit for injunction in effect was filed for restraining the judicial proceedings against the plaintiff-appellant which were going on before the Sub-Divisional Magistrate. The order of the Sub-Divisional Magistrate records finding of possession of the defendant-respondents over the property in dispute which has been noticed and considered by the lower Appellate Court in its judgement. Further the reliance on the report of the Amin dated 5.9.2009 by the learned counsel for the plaintiff-appellant is misplaced inasmuch as that report is filed post institution of the suit and ante decision of the Court of Sub-Divisional Magistrate under the aforesaid provisions of Section 198A(2) of the Sub-Divisional Magistrate.
The lower Appellate Court has further found that the Khatauni with regard to the property in dispute for the Fasli year 1410 to 1415 revealed that the defendant-respondents were recorded therein as bhumidhar with transferable rights. Further, the suit has been filed claiming adverse possession over the property in dispute which, though the lower Appellate Court sought to discard that claim, relying upon the the judgement of the Supreme Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Ors. reported in (2014) 1 SCC 669, yet there is no gainsayingthe fact that the plaintiff-appellant admitted want of title over the property in dispute in view of his claim of adverse possession. The lower Appellate Court has noticed the concealment in the plaint of the pendency of the proceedings before the Court of Sub-Divisional Magistrate. Moreover, while referring to the testimony of P.W.1- Radhey Shyam, P.W.2- Satya Prakash and P.W.3- Hari Singh, the court noticed their testimonies that they had not obtained bail in any proceedings. On perusal of the order of the Sub-Divisional Magistrate, the lower Appellate Court found that on the date of that order, the plaintiff-appellant had removed his possession from the property in dispute. The defendant-respondents have been found to be the allottees over the property in dispute. As such, there is no error or illegality in the judgement passed by the lower Appellate Court.
No substantial question of law, including the ones framed in the memorandum of appeal, exists. This appeal is, accordingly, dismissed.
Order Date :- 24.10.2019 A. V. Singh (Jayant Banerji, J.)