Allahabad High Court
Lucknow Development Authority Through ... vs Yashraj Singh & Others on 1 November, 2017
Equivalent citations: AIR 2018 (NOC) 721 (ALL), 2018 (2) ALJ 339
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (AFR) Reserved on 22.03.2017 Delivered on 01.11.2017 Court No. -24 1. Case :- FIRST APPEAL No. - 153 of 2013 Appellant :- Lucknow Development Authority Through Its Vice Chairman Respondent :- Yashraj Singh & Others Counsel for Appellant :- Gaurav Mehrotra, O.P. Srivastava Counsel for Respondent :- Arvind Rajdan, Sudeep Seth 2. Case :- FIRST APPEAL No. - 154 of 2013 Appellant :- State Of U.P. Through Its Special Nazul Officer, 6, Jagdish Chandra Bose Marg Lucknow Respondent :- Yashraj Singh & Others Counsel for Appellant :- Standing Counsel, Shobhit Mohan Shukla Counsel for Respondent :- Dr. R.K. Singh, Arvind Razdan, Sudeep Seth Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Both these appeals under Section 96 of Code of Civil Procedure (hereinafter referred to as "C.P.C.") have been filed against common judgment and decree dated 12th April, 2013 passed by Additional Civil Judge (Senior Division) Court No. 21, Lucknow in Regular Suit No. 687/12, Yashraj Singh Vs. State of U.P. and two others.
2. For the purpose of pleadings and reference of documents, we are relying on record of First Appeal No. 153 of 2013 (hereinafter referred to as "LDA's Appeal") and wherever there is any difference, pleadings and reference of documents of Appeal No. 154 of 2013 (hereinafter referred to as "State's Appeal") will be referred.
3. Facts, giving rise to above appeals, are briefly stated as under:
4. Yashraj Singh, son of Yashpal Singh-plaintiff-1, (hereinafter referred to as "plaintiff") in LDA's Appeal instituted Original Suit No. 687 of 2012 in the Court of Civil Judge, Senior Division, Lucknow vide plaint dated 24th May, 2012. Relief sought in aforesaid Suit is a perpetual injunction restraining defendant-1, i.e. State of U.P., through Special Nazul Officer, Lucknow, and defendant-2, i.e., Lucknow Development Authority through its Vice Chairman (hereinafter referred to as "LDA"), officers, servants and associates thereof from interfering, obstructing or resisting in carrying out development works/raising constructions or otherwise using property in dispute, described in paragraph 1 of plaint i.e. Land Khasra Plots nos. 67, 68, 69, 70,71, 98, 99, 100 to 112, 116 and 136 measuring 38375 Square Feet (3566.50 Square Meter) situated in Mohalla Khas Bazar (Chaina Bazar), Police Station Qaisarbagh, Lucknow.
5. Plaint case set up by plaintiff is that land in dispute was acquired by plaintiff through registered Gift Deed dated 15th July, 2011 executed by Syed Mohd. Ahmad son of Late Syed Raza Ali Khan, impleaded as defendant-3 in Suit. Sijra of defendant-3, in order to show how he succeeded disputed land from his ancestors, is given in para-3, as under:
AMAJAD ALI SHAH Wajid Ali Shah Mirza Jawad Ali Nawab Afsar Bahu Begum First Married Nawab Tajdar Nawab Badshah Wife Nawab Bahu Hasmat Bahu Khas Mahal Mahat Sahiba Marriage/Nikah Nikah with Prince Second - Married Nawab Sultan Hamid Ali Wife Nawab Bahadur Akhtar Mahal Prince Khus Bakht Syed Mohd. Raza Prince Ali Khan Khusbakht (issue surviving) Badshah Bahu Syed Mohd. Ahmad Wife of Prince (defendant-3) Ahmad Ali
6. Land was recorded in the name of Nawab Afsar Bahu Begum alias Nabboo Sahiba in 1862. Marriage of Nawab Afsar Bahu Begum was solemnized with Prince Hamid Ali. After death of Prince Hamid Ali, Nawab Afsar Bahu Begum was married again to Prince Khus Bakht. Nawab Afsar Bahu Begum ultimately died issueless. Land in dispute was transferred through a registered Hibanama, executed by Chhoti Shahzadi, in favour of her nephew Nawab Sultan Bahdur, in 1918. From Nawab Sultan Bahdur, land was ultimately succeeded by defendant-3 i.e. Syed Mohd. Ahmad.
7. Plaintiff is in actual physical possession over disputed land since the date of execution of gift and till the date of filing of suit. Plaintiff has carried out development works, namely, leveling, removal of earth, filling of ditches/pits etc. A boundary-wall has also been raised. On 12.05.2012, Officials of defendants-1 and 2, i.e. State of U.P. and L.D.A. along with police personnel came to disputed land and told that land belong to defendants-1 and 2 and work carried out by plaintiff is unauthorized. It is in these circumstances suit for permanent injunction was filed, seeking following reliefs:
"(A) That by a decree in the nature of perpetual injunction the defendant no.1 and 2. Its officer's servant and assigns are any one whomsover acting or clarning through it be restrained permanently from interfering, obstructing or resisting in carrying out development works/raising constructions or otherwise using the property in dispute as described in paragraph 1 of the plaint. The boundary of land is as under:
East : House of Sri Siddiq Hasan West: Park North : Rani Laxmi Bai Marg Sourth : Araji O.G. Club (B) That any other degree or order that this Hon'ble Court may deem fit and proper may also be passed in the circumstances of the case. (C) That the cost of the suit be awarded to the plaintiff."
8. Common written statement was filed by defendants-1 and 2 under Order VIII Rule 1 C.P.C. stating that plaintiff has no right or concern with disputed plots. Even defendant-3 has no right either to execute sale-deed in favour of plaintiff or to otherwise claim any ownership right thereon for the reason that disputed land is ''Nazul' hence owned and possessed by defendant-1. It is being managed by defendant-2.
9. Defendant-1 leased out Nazul, Khasra Nos. 67 (P), 68 to 71, 98 to 112, 116 (P), 136 (P) measuring 1-8-7-114, situated at Mohalla Khas Bazar, Rani Laxmi Bai Marg, Lucknow (as per settlement year 1862) to "Door Darshan Kendra, Lucknow", on 29.03.1971 for a period of 30 year with option of two renewals of 30 years each, on annual rent of Rs. 1100/-. However, as per official record, vide file no. 204-V-251, and G.O. No. 1756/9-Nazul-302-N./70 dated 25.05.1985;, GO No. 4334/42-2/9484 dated 25.09.1984 and G.O. No. 6212/9-302-N/70 dated 11.09.1984 (settlement year 1862), Mohalla Khas Bazar relating to land Khasra No. 67 (P) to 71, 98 to 112, 116 (P) and 136(P) area 38636 Square Feet land was leased out to "Director, Khel Kood Vibhag, Lucknow". Remaining area of Nazul Khasra No.116(P) is still owned and possessed by defendants-1 and 2. Contents of Para 2 to 14 of plaint were denied. In additional pleas, issue of maintainability of suit was raised for want of notice under Section 80 C.P.C. against State of U.P. It was reiterated that land is ''Nazul', entered in Revenue record and that the land in question never belonged either to defendant-3 or his ancestors and hence plaintiff has no concern with the same. Plaintiff has neither any prima facie case nor balance of convenience. He has deliberately concealed true facts and not come to Court with clean hands, therefore, not entitled for injunction.
10. Defendant-3 filed his own written statement and by way of an affidavit stated that a Gift Deed dated 15.07.2011 was executed in favour of plaintiff in respect to property in dispute, however Khasra plots numbers, as mentioned in the plaint, is subject to verification by Revenue Authorities. Possession of land, subjected to Gift Deed dated 15.07.2011, was transferred at the time of execution of Gift Deed. Land was inherited by defendant-3 from his ancestors. Family pedigree given in para 3 of plaint is not fully correct inasmuch as Nawab Afsar Bahu Begum, wife of Sarfaraz-ud-daula, left one son Late Aagha Bahadur. Subsequent pedigree is correct. Suit land was recorded in the name of "Nawab Badshah Bahu" and not in the name of "Nawab Afsar Bahu Begum". Nawab Badshah Bahu Begum was popularly known as "Nabbu Sahiba" alias "Chhoti Shahzadi". Her name was entered in revenue record of 1862 settlement, but she died issueless. It was further admitted that "Chhoti Shahzadi" made a registered Hibbahnama in favor of grand father of defendant-3 i.e. Nawab Sultan Bahadur in 1918. Plaintiff had given a reference of Original Suit (R.S.) 250 of 1982. Aforesaid suit instituted between M/s Jugal Vihar Samiti Limited Vs. L.D.A. and others was decided by Civil Judge vide judgment dated 28.4.1994, but defendant-3 said that Suit 250 of 1992 was in respect of a different property, though that was also recorded in the name of "Chhoti Shahzadi". He further pleaded that no cause of action has accrued against defendant-3 and no relief has been sought against him hence suit cannot be decreed against him. It is further said that ''Nazul' Department of Defendant-1 or L.D.A. has no concern with property in dispute and if they are interfering in the possession of plaintiff, they have no right to do so.
11. Trial Court formulated 10 issues as under:
Þ1- D;k oknxzLr Hkwfe ds izFke cankscLr o"kZ 1862 ds vfHkys[kksa esa izfroknh la01 vFkok 2 ntZ [kkrsnkj gSa\ 2- D;k oknxzLr Hkwfe dk vf/kxzg.k izfroknh la0 1 vFkok 2 ds }kjk o"kZ 1862 ds mijkUr fd;k x;k gS\ 3- D;k izfroknh la0 1 vFkok 2 dks oknxzLr Hkwfe ds ckcr nwjn'kZu dsUnz vFkok funs'kd [ksydwn ds i{k esa iV~Vk foys[k fu"ikfnr djus dk fof/kd vf/kdkj izkIr Fkk\ 4- D;k izfroknh la0 3 ds iwoZt oknxzLr Hkwfe ds okLrfod Lokeh o v/;klh Fks\ 5- D;k izfroknh la0 3 dks oknxzLr Hkwfe ds ckcr oknh ds i{k esa migkj foys[k fu"ikfnr djus dk fof/kd vf/kdkj izkIr Fkk\ 6- D;k oknh oknxzLr Hkwfe dk Lokeh o v/;klh gS\ 7- D;k mDr okn dks ;ksftr djus dk dkssbZ okn dkj.k mRiUu gqvk\ 8- D;k oknh LFkk;h fu"ks/kkKk dh vkKfIr izkIr djus dk vf/kdkjh gS\ 9- D;k oknh fdlh vU; vuqrks"k dks izkIr djus dk vf/kdkjh gS\ 10- D;k mDr okn /kkjk 80 lh0ih0lh0 ds izkfo/kku ls ckf/kr gksus ds dkj.k xq.k nks"k ds vk/kkj ij fuLrkfjr fd;s tkus ;ksX; ugh gS\ß "1- Whether Respondent No. 1 or 2 is a recorded Khatadar (account holder) in the records of first consolidation year 1862 of the disputed land?
2- Whether the disputed land has been acquired by Respondent No. 1 or 2 post year 1862?
3- Whether Respondent No. 1 or 2 had the legal right to execute the lease deed of disputed land in favour of Doordarshan Kendra or Director Sports?
4- Whether the ancestors of Respondent No. 3 were the real owner and possessor of the disputed land?
5- Whether Respondent No. 3 had the legal right to execute the gift deed of disputed land in favour of the plaintiff?
6- Whether the plaintiff is the owner and possessor of the disputed land?
7- Whether any cause of action had arose to file the said suit?
8- Whether the plaintiff is entitled to get the decree of permanent injunction?
9- Whether the plaintiff is entitled for any other relief?
10- Whether the aforesaid suit, being barred by the provisions of Section 80 C.P.C., is not fit to be disposed of on merits."
(English Translation by Court)
12. Issues 1, 2 and 3 were taken together. Trial Court answered the same against defendants-1 and 2. Issues-4, 5 and 6 were taken together and returned in favour of plaintiff. Thereafter issue 7 was returned in favour of plaintiff and issue 10 was returned in negative i.e. against defendants-1 and 2. Thereafter, issues 8 and 9 were taken i.e. with respect to relief and suit was decreed by granting injunction, restraining defendants-1 and 2 from interfering in possession and use of disputed property of plaintiff.
13. Sri O.P. Srivastava learned Senior Advocate, assisted by Sri Shobhit Mohan Shukla, Advocate has appeared and argued on behalf of appellants and Sri Sudeep Seth, Advocate has appeared and argued the matter on behalf of plaintiff.
14. Defendant-3 has neither put in appearance through Counsel nor appeared in person and has not contested the matter before this Court.
15. Learned counsel for appellants contended that one of the issue regarding "maintainability of suit" was taken in written statement filed by State of U.P. i.e. want of notice under Section 80 C.P.C. That has been returned by Court below only on the ground, when Suit was registered, defendants-1 and 2 did not challenge the said registration of suit before any competent forum and once Suit has been registered in parent Court, vide order dated 24.05.2012, now it cannot be rejected for want of notice under Section 80 of C.P.C. Moreover, onus to prove this issue-10 relating to want of notice under Section 80 of C.P.C. is upon defendants-1 and 2, which they failed to discharge, therefore Suit has to be decided on merit and cannot be dismissed, for want of notice under Section 80 of C.P.C. Learned Senior Counsel, submitted that approach of Court below is patently illegal. It has failed to consider real effect and scope of Section 80 of C.P.C. and also well settled authorities on the subject, therefore, judgment and decree under appeal are liable to be set-aside on this ground alone and suit is liable to be dismissed for want of notice under Section 80, C.P.C. against State of U.P.
16. It is further contended that Suit for injunction could have been decreed only when plaintiff is able to prove his title over land in dispute. Plaintiff claimed title through defendant-3 and hence issue 4 was framed, whether ancestors of defendant-3 were owner in possession of land in dispute. Similarly issue 5 was framed, whether defendant-3 had any right to execute Gift Deed in favour of plaintiff in respect to disputed land and issue-6 was, whether plaintiff is owner and possession of disputed land. Pleadings in plaint, in respect to disputed land, referred its source to Settlement of 1862 stating that in the said settlement disputed land was shown in Revenue record in the name of "Nawab Badshah Bahu Begum alias Nabboo Sahiba (Chhoti Shahzadi)", but copy of such Revenue record was not produced before Court below. The very basic fact was not proved at all. The document actually relied by Trial Court is paper No.C-29/10 to C-29/17, which is a self certified document by plaintiff and it was treated to be an admissible evidence to prove that in Settlement of 1862 land was in the name of "Chhoti Shahzadi". It is submitted that there was no admissible evidence available on record to prove that name of "Chhoti Shahzadi" was shown in Settlement of 1862. Once this basic fact was not proved by adducing any admissible evidence, all subsequent line of succession claimed and documents were of no consequence and therefore findings recorded with respect to issue 4 is based on no evidence.
17. Sri Srivastva, learned Senior Counsel appearing for appellant, further contended that historical facts are that prior to First War of Independence in 1857, when British Government took over Indian territory, area of "Oudh" was under the rein of East India Company. Area of Oudh was acceeded in 1855 and became property of East India Company and thereafter came to British Government. Sri Srivatava drew our attention to Paras-8, 9 and 10 of Rejoinder Affidavit filed by plaintiff in reply to counter affidavit of defendants-1 and 2 in ad-interim injunction proceedings and said that plaintiff himself stated that disputed land was part of property, which is commonly known as "Makbara Hazrat Ahmad Ali Shah Badshah Chaharum Mulk Oudh". The first owner in possession thereon was Third King of Oudh i.e. Mohd. Ali Shah, who brought it under "Shahjanaf Trust" in 1860 on the advise of his Secretary Muntajim-ud-daula Hakim Mehdi Ali. Its maintenance was also taken care by the fund of "Shahjanaf Trust". Vide order dated 01.01.1862 passed by Chief Commissioner, disputed property was placed under the management of Board constituted by British Government. In 1864, management of Board handed over custody of disputed land to "Nawab Afsar Begum", sister of former King "Wajid Ali Shah". These facts were sought to be proved by "Vasika Manual" filed as Annedure-12 to the said affidavit. 'Nawab Afsar Begum' died on 18.09.1884 and her estate was succeeded by sole heir and legal representative i.e. "Malka Mukarrma Nawab Munir Ul Nisha Badshah Bahu" alias "Nabbu Sahiba" (who is also known as "Chhoti Shahzadi"). She became owner of disputed property. He also drew our attention to Annexure 1 to the said affidavit, which shows that in 1861 with respect to "Shahjanaf" property, a suit was filed claiming it to be a personal property, but it was rejected by Trial Court and in Appeal also former King failed. Sri Srivastava submitted that this document itself shows that in 1860, for the purpose of management of disputed property and concerned Makbara, it was placed under "Shahjanaf Trust" for maintenance. On 01.01.1862, under an order of Chief Commissioner, it was handed over to a Board for its management. This shows that it was not a property owned by an individual but a Government property. He further submitted that "Chhoti Shahzadi" succeeded estate of "Nawab Afsar Begum" after her death on 18.09.1884. That being so there is no question of mention of name of "Chhoti Shahzadi" in Settlement of 1862. Sri Srivastava further submitted that to prove that after 18.09.1884, at any point of time the name of Chhoti Shahzadi was entered in revenue record to prove this fact, no document was placed before Court below and, therefore, findings recorded by Court below with respect to issue 4 is founded on no evidence at all and liable to be set aside, since it is perverse .
18. Learned Counsel for plaintiff on the contrary contended that the matter is quite old and old documents, whatever available have been filed. Since all the documents were more than 30 years old, therefore, no formal proof was required. Court below has relied on documents and rightly decided the matter. He further contended that for mere non compliance of Section 80 C.P.C., Suit could not have been dismissed. He further submitted that since suit was entertained by Court below, it must be deemed that leave was granted to file suit without serving any notice and hence suit cannot be dismissed for want of notice under Section 80 C.P.C., at appellate stage. He placed reliance on a Single Judge judgment of Kerala High Court in T.V. Parangodan, Vs. District Collector, Trichur and others, AIR 1989 Kerala 276.
19. We have heard learned counsel for parties and perused the record.
20. To decide Appeals in the light of rival submissions, in our view, four points for determination have arisen:
(i) Whether suit was not maintainable since no notice under Section 80 C.P.C. was given to defendant-1 i.e. State of U.P., appellant in State's Appeal before this Court;
(ii) Whether issue 4 relating to title of defendant-3, Syed Mohd. Ahmad, returned by Trial Court in favour of plaintiff, is founded on any admissible evidence or plaintiff failed to discharge burden of proof of the said issue and judgment of Trial Court taking a view in favour of plaintiff is based on no evidence, patently illegal and perverse;
(iii) Whether findings of Trial Court are contrary to material on record with respect to title of defendant-3 over property in dispute from whom plaintiff derived his title; and
(iv) Whether Trial Court has rightly held that plaintiff validly derived his title through Gift Deed dated 15.07.2011 from defendant-3."
21. We proceed to decide first point for determination with regard to maintainability of Suit for non-compliance of Section 80 C.P.C.. It is an admitted fact that no notice under Section 80 C.P.C. was served by plaintiff upon State of U.P. before filing Suit in question. Plaint is dated 24.05.2012. It was presented in the Court of Civil Judge (Senior Division), Lucknow on the same date. Original record shows that Munsarim submitted report dated 24.05.2012. An order was passed on the back of first page of plaint, by Civil Judge (Senior Division), Lucknow on 24.05.2012 itself directing to register it. Trial Court, while registering suit, also directed to issue summons to defendants fixing 29.08.2012. An application for ex-parte ad interim injunction under Order XXXIX Rule 1 and 2 C.P.C. was also placed for consideration before Trial Court on which it passed following order on 24.05.2012 itself as under:
"izkFkZuk&i= x& 6 lefFkZr "kiFk&i= x&7 ij oknh ds fo}ku vf/koDrk dks lquk i=koyh dk lE;d~ ifj'khyu fd;kA izkFkZuki= x&6 oknh dh vksj ls vUrxZr vkns'k 39 fu;e 1 o 2 lifBr /kkjk&151 lh0ih0lh0 ds rgr izLrqr fd;k x;k gSA bl Lrj ij fcuk izfroknh dks lqus oknh ds i{k esa ,d i{kh; vUrfje fu'ks/kkKk tkjh fd;s tkus dk vk/kkj i;kZIr ugha gSA izfroknh dks uksfVl tkjh gksA oknh mHk; izdkj ls iSjoh djsA i=koyh okLrs [email protected] izkFkZuk&i= x&6 fnukad 05&7&2012 dks is'k gksA"
"Heard the learned counsel for plaintiff on Application Ga-6, supported with Affidavit Ga-7; duly perused records.
Application Ga-6 has been presented by the plaintiff under Order 39 Rule 1 and 2, read with Section 151 C.P.C.
At this stage, sufficient grounds do not exist to issue ex-parte interim injuction order without hearing the defendant. Notice be issued to the defendant. Let the plaintiff take steps both ways.
The file be produced on 05.07.2012 for objection/disposal of application Ga-6."
(emphasis added) (English Translation by Court)
22. Thereafter application 6-C was disposed of vide order dated 01.10.2012, passed by Sri Amit Malviya, Additional Civil Judge (Senior Division), Court No. 21, Lucknow, granting ad interim injunction in favour of plaintiff.
23. Nine issues were framed on 12.02.2013. Subsequently, Issue-10 was framed by order dated 25.02.2013. At no point of time, Trial Court examined the question, whether suit was maintainable for want of notice under Section 80 C.P.C. though State of U.P. was defendant-1 in the suit and there was no pleading in the plaint that notice under Section 80 C.P.C. has been served upon State of U.P. or that there existed circumstances which compelled plaintiff to file suit without complying Section 80 C.P.C. and Court may grant leave to entertain suit without requiring plaintiff to comply and observe the requirement of notice under Section 80 C.P.C. Therefore, Trial Court at no point of time either granted any leave to plaintiff to institute suit without complying requirement of 80 C.P.C. nor there was any occasion to look into it since there is not even a whisper in the entire plaint requesting Court to entertain suit or allow plaintiff to institute suit without complying with the mandatory requirement of notice upon defendant-1 i.e. State of U.P, under Section 80 C.P.C.. In fact, we find that Court below was wholly unconcerned with Section 80 C.P.C. and without applying its mind that State of U.P. was also a party in the suit and without caring to go through the plaint to find out whether there is any compliance of Section 80 CPC, it simply directed to register the suit.
24. If we go through Section 80 CPC and its history, we find that at no point of time, its rigour has been diluted to the extent of maintaining suit despite complete non-compliance. Prior to Section 80 C.P.C., 1908, similar provision existed in Section 424 of C.P.C., 1882. Considering the purpose and objective of such a provision, in Secretary of State for India in Council Vs. Perumal Pillai and others (1900) ILR 24 (Mad.) 271, it was held:
"... object of the notice required by section 424, Civil Procedure Code, is to give the defendant an opportunity of settling the claim, if so advised, without litigation."
25. Section 80, C.P.C. as initially incorporated in C.P.C. 1908 reads as under:
"80. No suit shall be instituted against the Secretary of State for India in Council, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been, in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." (emphasis added)
26. Aforesaid provision has undergone various amendments from time to time, but a major amendment was made by Act 104 of 1976 w.e.f. 01.02.1977, and said provision since 01.02.1977, reads as under:
"80. Notice.(1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government, (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of the railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in their behalf;
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;
and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated."
(emphasis added)
27. With reference to Section 80 C.P.C. of 1908, the objective and purpose came to be considered in Secretary of State for India In Council Vs. Gulam Rasul Gyasudin Kuwari (1916) ILR XL (Bom.) 392 wherein it was held as under :
"... the object of section 80 is to enable the Secretary of State, who necessarily acts usually through agents, time and opportunity to reconsider his legal position when that position is challenged by persons alleging that some official order has been illegally made to their prejudice."
28. The requirement of notice under Section 80 C.P.C. has also been held mandatory. In Bhagchand Dagaduss Vs. Secretary of State for India in Council AIR 1927 PC 176, it was held that the provision is express, explicit and mandatory. It admits no implications or exceptions. It imposes a statutory and unqualified obligation upon the Court. Therein a noticed was issued under Section 80 C.P.C. on 26.6.1922, but the suit was instituted before expiry of the period of two months from the said date. The Judicial Committee Observed:
"To argue as appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court." (emphasis added)
29. This decision was followed by Judicial Committee in Vellayan Chettiar Vs. Government of Province of Madras AIR 1947 PC 197.
30. In Government of the Province of Bombay Vs. Pestonji Ardeshir Wadia and Ors. AIR 1949 PC 143 it has been held that provisions of Section 80 of the Code are imperative and should be strictly complied with.
31. A Constitution Bench in Sawai Singhai Nirmal Chand Vs. Union of India, AIR 1966 SC 1068, in the judgment delivered by Hon'ble P.B. Gajendragadkar C.J., held that "words used in Section 80 are wide and unambiguous; they are "express, explicit and mandatory", and it would be difficult to except from their operation any proceeding, which can be regarded as a suit against the Government." Therein Court clearly observed that a suit in which an injunction is prayed is still a suit within the word of Section 80 and to read any qualification into it is an encroachment on the function of Legislation.
32. In Raghunath Das Vs. Union of India and another AIR 1969 SC 674, in para 8, Court said :
"8. The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80, Civil Procedure Code are not intended to be used as boobytraps against ignorant and illiterate persons."
33. The object and purpose of enactment of Section 80, C.P.C. was also noticed in State of Punjab Vs. M/s. Geeta Iron and Brass Works Ltd. AIR 1978 SC 1608 and Court held as under :
"A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted."
34. Following the above authorities in Bihari Chowdhary & Anr Versus State Of Bihar and others, AIR 1984 SC 1043=1984 SCC (2) 627, Court, in para 6, observed:
"6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 C.P.C. is attracted, can not be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the Section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable." (emphasis added)
35. In State of Andhra Pradesh and others Vs. M/s Pioneer Builders, AIR 2007 SC 113, Court said that "Service of notice under Section 80 is, thus a condition precedent for institution of a suit against the Government or a Public Officer." Therein Court also considered reason for insertion of sub-sections (2) and (3) and the consequence thereof, but said, the provision mitigates the recourse of sub-section (1) and empowers the Court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a Public Officer. But, the Court cannot grant relief under sub-section unless a reasonable opportunity is given to the Government or Public Officer to show cause in respect of the relief prayed for. Proviso to the said sub-section enjoins that in case the Court is of the opinion that no urgent and immediate relief should be granted, it shall return plaint for presentation to it after compliance of the requirement of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring to rule substantial compliance and tends to relax requirement of sub-section (1). Court then further said, "a conjoint reading of sub-sections (1) and (2) of Section 80, Legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court. In such case, a suit against the Government or a Public Officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how leave is to be sought for or given yet the order granting leave must indicate the ground (s) pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, Court cannot grant relief, whether interim or otherwise, except after giving Government or a Public Officer a reasonable opportunity of showing cause in respect to relief prayed for in the suit.
36. Having regard to Legislative intent noticed above, it needs little emphasis that the power conferred in the Court under sub-section (2) is to avoid genuine hardship and is, therefore, coupled with a duty to grant leave to institute a suit without complying with the requirement of sub-section (1) thereof, bearing in mind only the urgency of relief prayed for and not merits of the case, more-so, when want of notice under sub-section (1) is already made good by providing that even in urgent matters relief under this provision shall not be granted without giving a reasonable opportunity to the Government or a Public Officer to show cause in respect to the relief prayed for. The provision also mandates that if the Court is of the opinion that no urgent or immediate relief deserves to be granted it should return the plaint for presentation after complying with the requirements contemplated in sub-section (1).
37. In the present case, neither there is any pleading that the leave may be granted to present and institute suit without notice under Section 80 C.P.C. nor there is any application of mind on the part of Court below even to suggest that it had applied its mind to the requirement of Section 80(2) C.P.C. In fact the order passed by Court below on the application seeking ex-parte ad interim injunction shows that Court did not find even any reason existing to grant ex-parte interim injunction at the time of presentation of suit and that be so we are satisfied that there was no authority with the Court below to entertain the suit without having ensured about compliance of Section 80 C.P.C.. It is very unfortunate that relevant authorities on the subject have not at all been adverted by Court below on this aspect and in a very cursory manner only on the ground that suit was registered and no objection was taken by defendant-appellants, it has returned issue no. 10 in negative and has completely erred in law. Hnce findings recorded by Court below in respect to issue no. 10 cannot be accepted or appreciated but have to be reversed. First Point for determination is answered in favour of appellant and against plaintiff holding that suit without complying with requirement of Section 80 (1) C.P.C. was not maintainable. Since it goes to route of the matter, judgment and decree passed by Court below is liable to be set aside.
38. Now coming to points-2, 3 and 4, which can be dealt with together, we find that plaint case set up was that land in dispute was recorded in the name of Nawab Afsar Bahu Begum alias Nabboo Sahiba in the settlement of 1862, but defendant-3 in the written statement categorically pleaded that Nabboo Sahiba was the second name of Nawab Badshah Bahu @ Chhoti Shahzadi. Moreover, the document filed by plaintiff (paper no. 6-42/2) Wasika Manual (confidential) (revised 1970 Edition, Varanasi 1985) showed that last king of Oudh was Wajid Ali Shah who succeeded to thrown in 1847, but in February 1856 British Government acceded Government of Oudh. Wajid Ali Shah was removed and granted a monthly pension. Chapter XII on page 96 of the said document i.e. paper No. C-42/5 shows that the Makbara called "Imambara-i-Najat Ashraf" was placed along with some other tomb under the charge of superintendent by Muhammad Ali Shah, third king of Oudh, between 1837 to 1842. In 1861 Ex-King brought a suit in Civil Court against the nominee and Government. He claimed Shah Najaf as his private property but the claim was disallowed. In appeal claim of Ex-King to appoint a Trustee was also rejected. Thereafter, Chief Commissioner Oudh on January 1, 1962 passed an order, which read as under:
"Recent circumstances having tended more clearly to define the position of the British Government in reference to King Ghazi-ud-din Haider's tomb, known generally as the Shah Najaf, and the endowment attached to it, the Government recognize their obligation to make the best arrangements within their power for keeping up the dignity of this royal mausoleum. With these views it is intended from time to time to appoint a board of managers who, though only holding office on behalf of and at the pleasure of Government and bound to render annual account of their trust to the officer-in-charge of the Wasikas, shall during their tenure of office have full authority for disposing of the endowment and maintaining the building and grounds in any way not incompatible with the object of the institution that may to them seem most fitting. These managers will invariably be chosen from such members of the Muhammadan community of Lucknow as may by their rank, worth or nearness of blood to the buried king appear specially deserving of the honour of selection for the appointment.
"Subordinate of the managers there will be a darogha (Superintendent) on a certain fixed salary he must be a man of respectable character and will not be liable to removal by the managers of their own authority; if they should be displeased with him they must represent the matter of the Chief Commissioner, who after enquiry will act as he thinks proper."
39. In 1864, the aforesaid Tomb, Shah Najaf and attached endowment was placed in the custody of Board of Managers for maintenance but never any individual was declared owner in possession of the same so as to have any entitlement to further transfer the same. No evidence has been placed on record to show that in settlement 1862, disputed land was recorded in the name of Nawab Afsar Bahu Begum, as pleaded in the plaint. Trial Court has decided the matter in a very strange manner, firstly discussing whether defendant-appellants have been able to prove that the disputed land was 'Nazul' or not and thereafter answering the said issue against them it has answered the issue relating to the claim of plaintiff in his favour. This approach on the part of Trial Court is patently illegal inasmuch as plaintiff has to stand on its own and not to gain for the weakness of defendants. Unless plaintiff is able to prove fact pleaded there was no question of granting any relief to plaintiff. Therefore, points for determination 2, 3 and 4 are also answered against plaintiff and in favour of appellants.
40. However, we make it clear that these findings on point for determination 2, 3 and 4 are only for the purpose of showing illegality or perversity in the findings in the judgment and decree under appeal, but since we are of the view that suit itself was not maintainable for want of notice under Section 80 C.P.C.. We make it clear that our findings in respect to points for determination 2,3 and 4 shall not be treated as a final determination of rights between the parties and it shall be open to the parties to take up appropriate issues in appropriate proceedings and this judgment shall not be treated to be an authority on the questions of determination of rights of plaintiff and appellants in respect of property in dispute.
41. Before parting, we would like to direct an appropriate inquiry into the matter about the competence of judicial officer who has passed the judgment in question for the reason that the manner in which issue 10 with regard to Section 80 C.P.C. has been dealt with raises serious doubts either about his competence or about integrity or we find no reason as to how a judicial officer can pass an order and take such a view with respect to Section 80 C.P.C. ignoring binding authorities of Apex Court on the scope of Section 80 C.P.C. and its mandatory nature. Here is also not a case where defence available to the State with regard to Section 80 C.P.C. has been waived by State, but in fact it has been contested from the stage of filing written statement and when initially no issue was framed on this aspect, appellants contested the matter and thereafter issue 10 was added subsequently, which shows tooth and nail contest by appellants on the question of non-maintainability of suit for want of notice under Section 80 C.P.C. still Court below has not cared to look into the matter by going through relevant authorities on the subject and in a very cursory manner it has decided it. In fact even on other aspects we find judgment of Court below extremely cursory, based on no evidence and that is why we have made observations as above.
42. In the result, both appeals are allowed. Judgment and decree dated 12th April, 2013 passed by Additional Civil Judge (Senior Division) Court No. 21, Lucknow in Regular Suit No. 687/12, Yashraj Singh Vs. State of U.P. and two others is hereby set-aside and the suit is hereby dismissed.
Order Dated: 01.11.2017 Arvind-M.V.S.Chauhan