Allahabad High Court
Sri Krishna Murari vs State Of U.P. And 23 Others on 8 August, 2023
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:158650 Court No. - 10 Case :- SECOND APPEAL No. - 4 of 2023 Appellant :- Sri Krishna Murari Respondent :- State Of U.P. And 23 Others Counsel for Appellant :- Deepak Kumar Jaiswal Counsel for Respondent :- Kamal Kaushal Upadhyay Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the appellant, learned counsel for the respondents No. 5 to 9 at admission stage of the instant appeal and perused the record on board.
2. Instant second appeal has been preferred on behalf of the plaintiff-appellant assailing the judgment and decree dated 15.10.2022/19.10.2022 passed by the first appellate court in Civil Appeal No. 101 of 2018 affirming the judgment and decree dated 30.4.2018/5.5.2018 passed by the trial court dismissing the suit i.e. OS No. 09 of 1994 filed on behalf of the plaintiff-appellant.
3. Perusal of record reveals that the plaintiff-appellant has filed suit (OS No. 9 of 1994) for permanent prohibitory injunction restraining the defendants and their associates from interfering in the peaceful possession of the plaintiff over the property in question as given at the foot of the plaint and also not to create any hindrance in the construction work of boundary wall shown by letters B.E. until the the portion of plaintiff and land measuring area 3 biswa belonging to defendant No. 5 to 9, as shown in the map appended with the plaint, is demarcated on spot. During pendency of the suit, relief for mandatory injunction has also been sought for against the defendant Nos. 5 to 9 for demolition and removal of wall and platform (Chabutra) constructed by them in the west of the plaintiff's boundary wall shown by letters B.E. and clear the western pathway (access road) belonging to plaintiff within stipulated period as directed by Court, failing which the disputed wall and the platform may be removed through court order at the cost of the respondent No. 5 to 9. Suit file by plaintiff has concurrently been discarded by the courts below.
4. As per plaint's case, the dwelling place of the plaintiffs and his family members exists in the partial area of Khasra No. 700, which has been shown by letters A.B.C.D. at the foot of the plaint. Respondents No. 5 to 9 have their own abadi having area 3 biswa over there shown by letters G.I.H.J., which is situated at the western side of the house of the plaintiffs. Towards the east side of the house, defendants No. 5 to 9 have encroached Gaon Sabha land and constructed a platform (Chabutra) shown by letters F.G.E.H. During pendency of the case, defendants have blocked the western passage by constructing a wall in west side of plaintiff's wall shown by letters B.E. The plaint case alleges that on 23.12.1993, while plaintiff was repairing his boundary wall shown by letters B.E., the defendants have started creating disturbances on spot and tried to get the partial area of the plaintiff's abadi vacated measuring area 10 X 30 feet shown by letters K.B.L.E., which is property in dispute.
5. Defendants have filed their written statements alleging therein that the entire area of plot No. 700 is a Gaon Sabha property whereupon village abadi exists. Defendants have put a case that there is no existence of pathway, as shown by the plaintiffs, between the houses of both parties. In fact, the plaintiffs have illegally encroached the partial area of the Gaon Sabha property measuring area 10 X 30 feet for which they are not entitled. Chabutra shown by letters F.G.E.H. is an old Chabutra existing from the time of forefathers and same has been made Pucca (cemented).
6. Appellant has filed the instant second appeal on the following substantial question of law as formulated at the bottom of the appeal:
"(a) Whether finding and view of Lower Appellate Court that suit was barred Under Order 7 Rule 3 of C.P.C. on account of lack of description of property sufficient to identify it, is erroneous and not sustainable under the law?
(b) Whether plaint-map showing boundaries of land in question by numbers to identify the property is not sufficient to decree the suit?
(c) Whether Commissioner's Report and admission of defendants No. 5 to 9 regarding possession of the defendants and construction of Chabutra over Gaon Sabha land Gata No. 698 shown with letters F. G. E. H. is not sufficient to decree the suit of mandatory injunction?
(d) Whether suit for permanent prohibitory injunction can be decreed on the basis of possession of plaintiffs over the land in dispute?"
7. Learned counsel for the appellant submitted that while deciding issue No. 7, the trial court has illegally given a finding that the plot in question is not identifiable on spot as required under Order 7 Rule 3 CPC whereas description as depicted in the map appended to the plaint and the pleading in the plaint are sufficient to identify the land in question. It is further submitted that the Commissioner Report and the admission made by the defendant No. 5 to 9 are sufficient to prove illegal construction of platform shown by letters F.G.E.H. It is further submitted that the possession of the plaintiff over the property in question is proved by the deposition of witnesses and also in view of the judgment dated 30.1.1996 passed by (Tehsildar/Assistant Collector) in a proceeding under Section 122B of UPZA and LR Act.
8. Per contra, learned counsel for the contesting-respondents No. 5 to 9 has contended that the courts below have rightly return the concurrent finding of the fact that the plaintiffs have no concern with the property in question and the same is not identifiable on spot on the descriptions as depicted in the map shown at the foot of the plaint. It is further contended that the claim of the plaintiffs over the property in question has concurrently been discarded by the courts below, therefore, no interference is warranted at this stage in the instant second appeal. It is further contended that no substantial question of law is made out to entertain the instant second appeal. The substantial question of law as formulated in the memo of instant appeal are more related to the question of fact, which has concurrently been decided against the plaintiffs. Therefore, instant second appeal is liable to be dismissed being misconceived and devoid of merits.
9. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it reveals that the instant second appeal has been preferred only on behalf of one of the heir and legal representative of the plaintiff No. 1 out of six heirs and legal representatives. It appears that the remaining heirs and legal representatives of the plaintiff No. 1 have allowed to stand the judgment and decree passed by the first appellate court. Plaintiffs are claiming their right and title over the property in question i.e.10 X 30 feet shown by letters K.B.L.E. in the foot of the plaint, as averred in paragraph No. 7 of the plaint, situated over the partial area of plot No. 700 which is Gaon Sabha Abadi. Dealing with the right and title over the property in question as mentioned in the plaint and the map (Paper No 6Ka/11) appended to the plaint, the learned trial court has discarded the claim of the petitioner. In deciding the issue No. 1, the trial court has given a categorical finding that plaintiffs have failed to prove their ownership over the property in dispute. Learned First Appellate Court, relating to the ownership of the plaintiffs over the property in question, has formulated the point for determination No. 2 and affirmed the finding return by the learned trial court in this regard with an observation that the plaintiffs have failed to prove that the disputed plot measuring area 10 X 13 feet shown by letters K.B.L.E. is in his exclusive ownership or it is part of his personal Abadi. The appellate court has further observed that the plaintiffs have not properly depicted the disputed land in the map appended to the plaint. The plaintiffs have failed to properly demonstrate the demarcated land in dispute showing their exclusive ownership over there. No documentary evidence has been adduced to prove their ownership.
10. The identity of the plot in question is also one of the important point for consideration in the instant matter which has been decided by the trial court in negative. While discussing the entitlement of the plaintiffs for relief in issue No. 7, the learned trial court has given a categorical finding that no proper measurement of plot in question has been depicted in the map (6Ka-11) appended to the plaint. Under Order 7 Rule 3 CPC, a movable property should have been identified either by number or by its boundaries so that decree passed by the trial court could properly be executed, however, in the plaint and the map appended to it, the measurement and boundaries of the disputed portion has not properly been depicted to identify the disputed area. Issue relating to the boundaries has been discussed by the First Appellate Court as well in deciding the point for determination No. 1 and has given a categorical finding that averment made in the plaint and the map appended to the plaint are not in consonance with each other and there is no similarity with regard to the boundary of the disputed property. The difference of boundaries as depicted in the map filed by the plaintiff and in the map file by the defendant has also been pointed out. The appellate court has considered the Commissioner Report (Paper No. 142C) and its map (Paper No. 142/6) and came to the conclusion that the exact location of the area in dispute shown by letters K.B.L.E. is not identifiable. Learned appellate court has further observed that there is no evidence on record to prove or confirm the exact area of the Abadi belongs to the plaintiffs. The Commissioner Report is also not much clear qua pointing out the location of the area in dispute. The plaintiffs have shown the entire area by letters dated A.B.C.D.E., however, he could not clarify the boundary of his Abadi, therefore, the exact location of his Abadi and as to whether plot in question is a part of his Abadi or not cannot be determined. In deciding the point for determination No. 3, the learned first appellate court has given a categorical finding that the plaintiffs neither could prove their ownership over the property in question nor properly demarcate the same to fortify their relief as claimed in the plant qua permanent prohibitory injunction against the defendants over the disputed area shown by K.B.L.E.
11. In this conspectus, as above, the claim of the plaintiffs is concluded by finding of facts returned by the courts below which does not warrant any indulgence of this Court in exercise of Second Appellate Court jurisdiction under Section 100 CPC. It is settled that the first appellate court is a last court of fact and the Second Appellate Court have got no jurisdiction to re-apprise the evidence with respect to the factual aspect of the matter under Section 100 CPC, which could only be exercised in case the substantial question of law emerges for consideration. In the matter in hand, having considered the facts and circumstances of the case and in the light of the pleadings made by the parties coupled with the finding returned by the courts below, I did not find any substantial question of law to examine the claim of the plaintiff concluded by a finding of fact returned by the courts below which does not warrant any indulgence of this Court at the second appeal stage.
12. Resultantly, instant second appeal, being misconceived and devoid of merits, is dismissed with no order as to the cost.
Order Date :- 8.8.2023 vinay