Allahabad High Court
Shivanand Bharti And 7 Others vs Nizamuddin on 6 February, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- SECOND APPEAL No. - 150 of 2020 Appellant :- Shivanand Bharti And 7 Others Respondent :- Nizamuddin Counsel for Appellant :- Dilip Kumar Upadhyay,Sudhakar Pandey Counsel for Respondent :- Shashank Kumar Hon'ble Vivek Agarwal,J.
Heard Sri Sudhakar Pandey, learned counsel for the appellants and Sri Shashank Kumar, learned counsel for the respondent-Caveator.
This Second Appeal has been filed by the defendants being aggrieved by judgment and decree dated 21.10.2019 passed by Additional District Judge-(I), Ghazipur in Civil Appeal No.07 of 2012 (Shivanand Bharti and others Vs. Nizamuddin), which arises from the judgment and decree dated 22.12.2011 passed by learned Civil Judge (Sr. Division), Ghazipur in Original Civil Suit No.348 of 1988.
Brief facts leading to the present appeal are that plaintiff-Nizamuddin filed a suit for permanent injunction and for removal of construction raised by the defendants, who are appellants before this Court from the disputed site i.e. contained in Survey No.2229 which has been marked as F.B.C.E. in the suit map.
This suit was decreed in favour of the plaintiff and a direction was granted to the defendant to remove his illegal construction within a period of three months and hand over possession of the suit land in favour of the plaintiff.
Appellant's contention is that appellant is owner i.e. Bhoomidhar of land contained in Survey No.1238. Plaintiffs had purchased half portion of the land contained in Survey No.1237 which has now been numbered as Survey No.2299.
It is submitted that earlier on the basis of the statement given by the defendant while giving their oral evidence under the provisions contained in Order 10 Rule 2 C.P.C., an admission was made by the defendant that the disputed place marked as E.F.C.E. is within the area contained in new Survey No.2299. He had moved an application to withdraw such admission but that application was rejected and the judgment and decree was passed by the Trial Court. Being aggrieved of that judgment and decree, he had filed a revision before the revisional court in which he was permitted to withdraw such admission and thereafter matter was remanded yet without looking into the fact that such admission as was made by the defendant under the provisions contained in Order 10 Rule 2 C.P.C. on 19.11.1990, Trial Court decreed the suit on the basis of Amin Report contained in Document No.152C wherein, it is mentioned that the disputed area is part of Survey No.2299 (Old No.1237).
Learned counsel for the appellant submits that overlooking the objection which has been taken by the plaintiff as regard to the validity of the Amin Commissioner Report, impugned judgment has been passed.
A perusal of the objection as is contained in Annexure-6 reveals that such objection was filed in Civil Appeal No.07 of 2012 and not in the Original Suit No.348 of 1988.
At this stage, learned counsel for the appellant has tried to wriggle out from this documentary position and submits that in para-14 of the affidavit filed in support of the second appeal, it is mentioned that objection was filed against the survey map and relying on the same and without ascertaining the identity of land in question, the Courts below have passed the judgment and decree which are not proper in the eyes of law.
This averment in the affidavit is not specific as to whether such objection was filed before the Trial Court or the before the first appellate court.
This Court had specifically enquired from learned counsel for the appellant who had sought instructions from the instructing counsel, Sri Dilip Kumar Upadhyaya, as to whether, the objection was filed before the trial court or the first appellate court because this Court has specifically asked that whether such objection was filed before the remand or after the remand of the matter when document contained in Anenxure-6 was shown to the Court which clearly reveals that objection was filed in Civil Appeal No.07 of 2012 and not before the Trial Court.
At this stage, it will be appropriate to mention that no reason has been given as to why such objection to the Amin Commissioner Report was not filed before the Trial Court.
In view of such facts, it cannot be said that Trial Court erred in relying on the Amin Commissioner Report as is contained in Annexure-5 in which, it is specifically mentioned that the disputed area is situated in survey no.2229. It is an admitted position that survey no.2229 is a new number for survey no.1237 from which half of the portion was purchased by the plaintiff and it is not the case of the defendant that he has purchased any portion of old survey no.1237 or 2229 (new no.).
In view of such facts and the Amin Commissioner Report, for which the defendant had not moved any application before the trial court in compliance of the provisions contained in Order 26 Rule 10(2) C.P.C. to cross examine the Amin Commissioner, the impugned judgment and decree passed by the trial court relying on such Amin Commissioner Report cannot be faulted with.
Therefore, the judgment and decree passed by the first appellate court affirming the judgment and decree passed by the Trial Court can also not be faulted being passed on a documentary evidence and not based on the admission of the defendant which was allowed to be withdrawn.
At this stage, learned counsel for the appellant has placed reliance on the judgment of Supreme Court in case of Shreepat Vs. Rajendra Prasad and others as reported in 2000 (40) ALR 534 wherein, it has been held that without getting the identity established, no decree in the suit can be passed only on the basis of oral evidence.
In the present case, facts are, however, different.
It is an admitted position that there is a Amin Commissioner Report as is contained in Annexure-5 annexed with this memo of appeal. No application has been shown to have been moved by the appellant-defendant to cross examine such Amin Commissioner Report on his report as is provided under Order 26 Rule 10(2) C.P.C.
Therefore, for the failure of the counsel and the parties to adhere to the provisions contained in law and take recourse to such legal provisions, no advantage can be accrued in favour of the party because party is responsible for chosing the counsel and the extent of legal knowledge of the counsel is binding on the party.
In view of such facts, second appeal does not give rise any substantial question of law, therefore, appeal fails and is dismissed.
Order Date :- 6.2.2020 Ashutosh