Allahabad High Court
Ishak Lal vs Raghubir And Others on 2 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:106833 Court No. - 36 Case :- SECOND APPEAL No. - 1279 of 1991 Appellant :- Ishak Lal Respondent :- Raghubir And Others Counsel for Appellant :- T B Islam,Amit Kumar Srivastava,Arvind Srivastava Iii,M.A.Zaidi,Pk Jain,Rahul Jain,Vijay Chandra Srivastava Counsel for Respondent :- V.Chaudhry,A K Nagvanshi,Abhishek Mishra Neeraj,Manoj Misra,Rahul Mishra,V.P. Pandey Hon'ble Kshitij Shailendra,J.
1. Heard Sri Arvind Srivastava along with Sri Rahul Jain, learned counsel for the plaintiff-appellant and Sri Ashish Kumar Singh along with Sri Amit Singh Kushwaha, holding brief of Sri Ashish Kumar Nagvanshi, learned counsel for the defendant-respondents and perused the record.
2. Though an application filed by the plaintiff-appellant under Section 151 CPC seeking permission from this Court to repair the disputed property on account of its dilapidated condition was initially pressed by the learned counsel for the appellant, it was contended by the learned counsel for the respondents that the record of both the courts below has already been received long back and, therefore, instead of deciding the application, the instant second appeal may itself be finally decided.
3. On the consent of learned counsel for the parties, the Court proceeds to hear the appeal on merits and it is being decided finally.
4. This is plaintiff's appeal arising out of a suit for permanent prohibitory injunction restraining the defendant-respondents from interfering in his peaceful possession over the land covered by Gata No.2196, measuring 9 biswa, and Gata No.3920, measuring 3 biswa 16 biswansi, situated in Kasba, Pargana and Tehsil Sardhana, District Meerut. According to the plaintiff, the aforesaid land was purchased by him by two registered sale deeds dated 09.08.1968 and 12.08.1968 from its previous owners, namely, Ayub Khan and Hafiz Abdul Shakoor Khan, who were recorded owners of the said property, and that the plaintiff-appellant is in possession over the same, however, the defendants were interfering in his possession and proceedings under Section 145/146 CrPC were also initiated in which the property was unlawfully attached and that the matter reached upto the revisional court where the revision filed by the plaintiff-appellant was dismissed.
5. The suit was instituted against 12 defendants, out of whom only defendant no.1, namely, Raghubir filed his written statement. The defence taken in the written statement was that the land in suit belongs to the Khatikan Panchayat Community and is in possession and use of the said community and that the defendant no.1 was Pradhan of Khatikan Biradari Panchayat. It was further stated that the plaintiff was not in possession over the property and, therefore, the suit was barred. No other defendant filed written statement. The defendant no.1 appeared as DW-1.
6. The trial court decreed the suit by judgment and decree dated 02.03.1984 and injuncted the defendants from interfering in possession of the plaintiff.
7. A Civil Appeal No.108 of 1984 was filed by three defendants, namely, Raghubir, Shyami and Rajey. It is admitted to the parties that Raghubir withdrew from appeal and it was pressed only on behalf of appellants no.2 and 3, who had not filed any written statement.
8. Before the lower appellate court, an objection was taken by the present plaintiff-appellant, who was respondent in the first appeal, to the effect that the appeal at the behest of Shyami and Rajey was not maintainable as they had not filed any written statement, particularly, when Raghubir who had contested the suit, had withdrawn himself from the appeal. The lower appellate court framed three points for determination. The first two points were in relation to maintainability of the appeal and the third point was as to what would be the effect of non-conduct of survey in the proceedings.
9. The appellate court dealt with the issue of maintainability of the appeal and held that even if the appellants no.2 and 3 had not filed written statement, as per the provisions of Order 41 CPC, they could not be precluded from filing the appeal and, hence, the appeal filed at their behest was maintainable despite the fact that Raghubir had withdrawn himself during the pendency of the appeal itself. As regards the third point, the appellate court held that the claim of the plaintiff was not tenable, inasmuch as he had failed to establish his title over the land and in so far as the title of his predecessors i.e. the vendors is concerned, the same was in respect of certain area, however, the purchase was shown to have been made by the plaintiff beyond the area owned by his vendors and, hence, the suit was dismissed. The appellate court also gave weightage to the proceedings under Section 145/146 CrPC and held that since the property had been attached in the said proceedings and was in the possession of Supurdgar (Receiver), the plaintiff could not be said to be in possession over the same.
10. Learned counsel for the appellant has vehemently argued that once there is no dispute about the fact that the suit was contested only by defendant no.1 Raghubir by filing written statement and appearing as a witness, the appeal filed by other defendants did not remain competent. He further submits that even if there was pleading filed and oral evidence led by the defendant no.1, the same could not be relied upon as the defence of the remaining defendants, who remained the only appellants before the lower appellate court.
11. Per contra, learned counsel for the respondents submits that filing of appeal has nothing to do with the defence of a party and even if no written statement was filed by the appellants no.2 and 3, their appeal would remain to be maintainable.
12. This Court while admitting the instant second appeal on 20.05.2010, framed following question of law:-
"Whether, when defendant Raghubir alone filed the written statement before the Trial Court and the defendant Shyami and Rajey did not file any written statement nor contested the suit and the first appeal was filed jointly by Raghubir, Shyami and Rajey during pendency of which Raghubir withdrew himself from the appeal then Shyami and Rajey the defendants who had not contested the suit nor filed any written statement could maintain the appeal and as such the first appellate court having lost sight that the appeal was not maintainable has illegally allowed the appeal filed by the aforesaid defendants ?"
13. The only question, therefore, framed by this Court is as regards maintainability of the appeal on the aforesaid aspects.
14. Having heard learned counsel for the parties on the question framed by this Court, this Court may note that civil appeal is provided under Section 96 of the Code of Civil Procedure and it does not say that the appeal can be filed only by those defendants who had contested the proceedings or filed written statement. No other provision, either in substantive or procedural part contained in CPC puts a restriction against filing of the appeal by a person who did not file his written statement. Interestingly, appeal even from an ex-parte decree is also provided under Section 96(2) of CPC and, therefore, the Code contemplates filing of an appeal even in absence of any contest. Therefore, this Court does not find any error in the view taken by the lower appellate court as regards maintainability of the appeal by the appellants no.2 and 3 and, consequently, the finding recorded by the lower appellate court holding the appeal as maintainable does not require any interference and substantial question of law framed by this Court is answered against the plaintiff-appellant.
15. Section 100(5) of CPC provides that the second appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso attached to sub-section (5), however, confers power upon second appellate court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
16. In the facts of the present case, the Court has also to see as to whether the claim for injunction raised by the plaintiff-appellant was sustainable and whether on aspect other than maintainability of civil appeal, the lower appellate court was justified in reversing the decree drawn by the trial court.
17. Therefore, in the light of point No.3 framed by the lower appellate court in the civil appeal as regards the effect of non-conduct of survey on the suit, this Court frames following additional substantial question of law and proceeds to hear the appeal on the same as per the proviso attached to sub-section (5) of Section 100 CPC:-
"Whether the lower appellate court was justified in reversing the decree drawn by the trial court and dismissing the suit for injunction on the ground that the claim for injunction was not tenable for want of survey ?"
18. As regards the newly framed question, both the learned counsel have been heard at length.
19. Learned counsel for the appellant submits that voluminous documentary and oral evidence was led on behalf of the plaintiff-appellant establishing his title and possession over the property in respect of Gata Nos.2196 and 3920. Defendant no.1 neither pleaded that the land was situated in any other gata nor did he lead any evidence to that effect. He, therefore, submits that the title and possession over the property purchased being well established on record, non conduct of survey would not be fatal to the plaintiff.
20. Per contra, learned counsel for the respondents submits that the appellate court has analyzed the extent of ownership of the plaintiff in the light of documentary evidence and has rightly arrived at a conclusion that once the vendors were not the owner of the property in possession of the plaintiff, no contrary view can be taken by this Court. Learned counsel for the respondents also argued that the trial court's judgment was based upon probabilities and in this regards, that portion of the trial court judgment has been referred to in which the learned civil court has observed that civil suit can also be decided on the basis of probabilities.
21. Having heard learned counsel for the parties, this Court finds that in so far as the title of plaintiff is concerned, there is no dispute that there were two registered sale deeds on record. Other documents like Khewat khata of the vendor and certain consolidation records were also filed and proved in accordance with law. Even if the written statement filed by the defendant no.1 (Raghubir) is perused, he did not plead that the land was situated in any other gata. The written statement was too vague in nature and it only said that the property belongs to Khatikan Panchayat Community of which the defendant no.1 Raghubir is Pradhan. The other defendants in the civil suit claim themselves to be members of the same Khatikan Panchayat and cannot have a better defence in comparison to the defence taken by the Head of the Panchayat, nor did they file any written statement nor did they appear in the witness box. Therefore, there was no occasion for the lower appellate court to disbelieve the title of the plaintiff in absence of any cogent documentary or oral evidence or the pleadings from the other side.
22. In so far as the findings recorded in respect to the proceedings under Section 145/146 CrPC, the lower appellate court has committed grave error of law by relying upon the attachment made and possession handed over to Receiver (Supurdgar) and thereby erroneously arrived at a conclusion that plaintiff was not in possession.
23. It is well settled that the proceedings under Section 145/146 CrPC come into picture when there is apprehension of breach of peace in respect of possession over immovable property. However, in a catena of decisions by the Hon'ble Supreme Court as well as this Court, it has been held that such proceedings are subject to final adjudication made by the civil court in respect of title and possession. Even possession of Supurdgar, pursuant to attachment, is a temporary measure and, hence, irrespective of the fact that proceedings under Section 145/146 CrPC reached upto this Court in the form of an order passed under Section 482 CrPC, the same would not be conclusive as regards title and possession of the plaintiff-appellant which the civil court was examining. Admittedly, the suit was fled after the proceedings under Section 145/146 CrPC were put into motion and sufficient pleadings were made in that regard in the plaint itself.
24. As far as observation of trial court regarding "judgment on probabilities", this Court finds that this was only one line mentioned in the judgment and the same cannot be read in isolation. The judgment has to be read as a whole and this Court finds that the trial court had not only discussed recitals of sale deeds but also all other records, i.e. Khewat and consolidation records etc. The entries were also examined in relation to the proceedings under Section 145/146 CrPC and it arrived at a conclusion that no contrary pleading or evidence having been brought on record by the defendants, claim of the plaintiff was sustainable.
25. There is nothing on record to demonstrate that even if the land allegedly over possessed by the plaintiff-appellant belongs to Khatikan Panchayat Community, any proceedings for eviction or dispossession were ever initiated by the said Community against the plaintiff-appellant. No gata number belonging to Khatikan Panchayat Community was ever brought on record, either by way of pleading or evidence and in absence thereof, this Court is not in a position to assume that the plaintiff has encroached upon the land allegedly belonging to Khatikan Panchayat Community. Even sale deeds of plaintiff were not challenged by defendants.
26. In view of the above discussion, the additional substantial question of law framed by this Court in this judgment is answered in favour of the plaintiff-appellant and it is held that reversal of judgment of trial court was not an exercise in accordance with law.
27. Consequently, the second appeal is allowed.
28. The impugned judgment and decree dated 02.04.1991 pronounced and drawn by 6th Additional Chief Judicial Magistrate/ Civil Judge, Meerut in Civil Appeal No.108 of 1984 arising out of Original Suit No.517 of 1977 (Ishak Lal alias Ikh Lal Vs. Raghubir and others) is set aside and the decree drawn by the trial court in the said original suit is hereby confirmed.
29. Office is directed to remit the lower court record to District Judge, Meerut, who shall take appropriate steps for its preservation in accordance with General Rules (Civil).
30. All pending applications also stand disposed off in the light of adjudication of rights made in this judgment.
Order Date :- 2.7.2024 AKShukla/-