High Court

Appellant :- Catholic Diocese Of Lucknow Thru. Authorized Representative, Father Ronald D Souza Respondent :- Mohd. Abdul Salam And Another Counsel for Appellant :- Sridhar Awasthi Counsel for Respondent :- Shitesh Jha,Prem Shankar Hon'ble Jaspreet Singh,J. Heard Sri Sudeep Seth learned senior counsel along with Sri Ashutosh Pandey learned counsel for the appellant, Sri Mukesh Saxena learned counsel for the plaintiff respondent no.1 and Sri P.S Vajpayee learned counsel on behalf of the respondent no.2. At this stage, it may be noted that the instant second appeal assails the judgment of reversal passed by A.D.J Court no.6, Lucknow in Regular Civil Appeal no.38 of 2023 whereby the first appellate court allowed the respondent no.1's appeal, as a consequence, the regular suit bearing no.368 of 1998 instituted by the respondent no.1 which was dismissed by the trial court has been allowed by the first appellate court. It is also relevant to notice that the respondent no.2 hereinafter has also assails the same judgment by means of the connected second appeal no.173 of 2024 and since the issues in both the appeal are same hence the appeal is connected with the second appeal no.177 of 2024 which shall be leading appeal. It is in the aforesaid context that Sri Vajpayee has put in appearance in the instant appeal. Sri Seth learned senior counsel appearing on behalf of the appellant states that he also filed his vakalatnama for the respondent no.2 in the second appeal no.173 of 2024. Sri Mukesh Saxena learned counsel submits that he has instructions to appear in both the appeals on behalf of the contesting respondent no.1. It is also urged that the findings recorded by the trial court related to issue nos.5, 7 and 8 are against the appellant yet they were never challenged before the first appellate court. Sri Sudeep Seth learned senior counsel further urged that in so far as the finding on issue nos.5, 7 and 8 is concerned that pales an insignificance in a suit for injunction filed by the plaintiff who has to stand on its own legs. Submission of learned senior counsel for the appellant is that suit was filed by the plaintiff respondent no.1 bearing Case no.368 of 1998 claiming rights in respect of the property in question on the basis of the lease said to have been executed on 25.11.1991 for a period of 99 years. At the time of institution of the said case the only defendant in the suit was the Lucknow Christian Burial Board who is the respondent no.2 herein and the appellant of the other connected appeal. In presence of the respondent no.2, upon an application under Order 39 Rule 1 and 2 C.P.C, the respondent no.1 (plaintiff) was awarded and order of temporary injunction to maintain status quo vide order dated 24.08.1998. It is further pointed out that subsequent to the passing of the order of status quo on 24.08.1998 the plaintiff respondent no.1 moved an application before the trial court seeking order of the status quo ante in as much as it was averred by the plaintiff that he has been dispossessed as respondent no.2 had put a locks on the leased premises. Considering the counter affidavit filed by the respondent no.2 through its Secretary, the trial court on 10.12.1998 granted an order of status quo ante as a result it is the case that the possession was handed over to the plaintiff. It is at this stage that the present appellant moved an application seeking its impleadment in the suit and after filing his own pleadings. Upon the trial court framing issues, it was specifically noticed while dealing with the issue nos.1 and 2 that as far as the plaintiff is concerned, his deed of lease was not proved as it was an unregistered lease and was hit by Section 49 of the Registration Act as well as it fell foul of the provisions contained in the Transfer of Property Act. The trial court also recorded a categorical findings that on the institution of the suit the plaintiff did not appear to be in possession in as much as no documentary evidence was filed by the plaintiff to indicate his possession and it is only after passing of the order of status quo ante dated 10.12.1998 that the documents of alleged possession were filed and with the aforesaid findings by means of the judgment and decree dated 10.01.2023 the suit of the plaintiff respondent no.1 came to be dismissed. The plaintiff thereafter preferred Regular Civil Appeal which came to be registered Regular Civil Appeal no.38 of 2023 The first appellate court has reversed the findings recorded by the trial court and decreed the suit by means of the judgment and decree dated 03.07.2024. Submission of learned senior counsel is that while passing judgment of reversal it was incumbent upon the first appellate court to have considered the material as well as reasoning recorded by the trial court and once it found that the same was not in consonance with law it could have reversed the finding, however, in the instant case instead of dealing with the issue it ignored completely rather the first appellate court went on a tangent and framed point of determination in as much as it observed that the issue before the first appellate court was whether the possession of the plaintiff could be protected. It is urged that the mere fact that this point of determination was framed indicates that the first appellate court had not understood the controversy in the correct perspective and, thus, the findings recorded by the first appellate court is bad and even otherwise it has not considered that the basic right claimed by the plaintiff respondent no.1 was based on this lease which admittedly was unregistered and another fact that there was no document on record filed by the plaintiff respondent no.1 to indicate that he was in possession on the date of filing of the suit and without reversing such finding by meeting with the reasoning the appellate court was not justified in allowing the suit by means of the judgment and decree dated 03.07.2024. Learned counsel for the plaintiff respondent no.1 has urged that the appellant herein had earlier filed two suits which were dismissed. It has also been stated that the only issue before the trial court as well as first appellate court was in respect of possession which was duly proved and in such circumstances the appeal has been allowed which cannot be said to be bad. Learned senior counsel while refuting the aforesaid submission has pointed out that in so far as the submission made regarding two earlier suits said to have been filed by the appellant is concerned that was more the subject matter of the suit as it never fell part of any pleadings nor there was any evidence led in this regard. Matter requires consideration. The aforesaid second appeal is admitted on the following substantial question of law:- (i) Whether the first appellate court has committed an error in ignoring the fact that the basis of the suit filed by the plaintiff respondent no.1 was referable to a lease of year 1991 for a period of 99 years and that in itself was unregistered it was undisputed fact and yet while ignoring the same any protection could have been granted ? (ii) Whether the first appellate court has erred in failing to consider that specific finding that had been recorded by the trial court that the plaintiff was not in possession of the disputed property on the date of institution of the suit and yet could have granted an injunction to perpetuate an illegality which were right from its conception ? (iii) Whether the order passed by the first appellate court falls foul of provision of Order 41 Rule 31 CPC as far as it relates to the duty of the first appellate court as to how the first appeal is to be considered in light of the decision of the Apex Court in Santosh Hazari vs. Purushottam Tiwari (Dead); AIR 2001 SC 965. Since, the all the parties are duly represented hence no fresh notice is required. Let lower court record be summoned. Steps be taken by the learned counsel for the appellant for summoning the lower court record within a week. As an interim measure, the operation of the impugned judgment and order dated 03.07.2024 shall remain stayed, however, the parties shall maintain status quo as it exists today as no third party rights or any change in the property is permitted. List for final hearing along with second appeal no.173 of 2024 and the record in the month of September, 2025. The connected second appeal no.173 of 2024 is also admitted on the aforesaid questions which have been framed in the present leading appeal. Interim order shall also operates in the connected appeal no.173 of 2024. Order Date :- 11.7.2025 Harshita

Appellant :- Catholic Diocese Of Lucknow Thru. Authorized Representative, Father Ronald D Souza Respondent :- Mohd. Abdul Salam And Another Counsel for Appellant :- Sridhar Awasthi Counsel for Respondent :- Shitesh Jha,Prem Shankar Hon'ble Jaspreet Singh,J. Heard Sri Sudeep Seth learned senior counsel along with Sri Ashutosh Pandey learned counsel for the appellant, Sri Mukesh Saxena learned counsel for the plaintiff respondent no.1 and Sri P.S Vajpayee learned counsel on behalf of the respondent no.2. At this stage, it may be noted that the instant second appeal assails the judgment of reversal passed by A.D.J Court no.6, Lucknow in Regular Civil Appeal no.38 of 2023 whereby the first appellate court allowed the respondent no.1's appeal, as a consequence, the regular suit bearing no.368 of 1998 instituted by the respondent no.1 which was dismissed by the trial court has been allowed by the first appellate court. It is also relevant to notice that the respondent no.2 hereinafter has also assails the same judgment by means of the connected second appeal no.173 of 2024 and since the issues in both the appeal are same hence the appeal is connected with the second appeal no.177 of 2024 which shall be leading appeal. It is in the aforesaid context that Sri Vajpayee has put in appearance in the instant appeal. Sri Seth learned senior counsel appearing on behalf of the appellant states that he also filed his vakalatnama for the respondent no.2 in the second appeal no.173 of 2024. Sri Mukesh Saxena learned counsel submits that he has instructions to appear in both the appeals on behalf of the contesting respondent no.1. It is also urged that the findings recorded by the trial court related to issue nos.5, 7 and 8 are against the appellant yet they were never challenged before the first appellate court. Sri Sudeep Seth learned senior counsel further urged that in so far as the finding on issue nos.5, 7 and 8 is concerned that pales an insignificance in a suit for injunction filed by the plaintiff who has to stand on its own legs. Submission of learned senior counsel for the appellant is that suit was filed by the plaintiff respondent no.1 bearing Case no.368 of 1998 claiming rights in respect of the property in question on the basis of the lease said to have been executed on 25.11.1991 for a period of 99 years. At the time of institution of the said case the only defendant in the suit was the Lucknow Christian Burial Board who is the respondent no.2 herein and the appellant of the other connected appeal. In presence of the respondent no.2, upon an application under Order 39 Rule 1 and 2 C.P.C, the respondent no.1 (plaintiff) was awarded and order of temporary injunction to maintain status quo vide order dated 24.08.1998. It is further pointed out that subsequent to the passing of the order of status quo on 24.08.1998 the plaintiff respondent no.1 moved an application before the trial court seeking order of the status quo ante in as much as it was averred by the plaintiff that he has been dispossessed as respondent no.2 had put a locks on the leased premises. Considering the counter affidavit filed by the respondent no.2 through its Secretary, the trial court on 10.12.1998 granted an order of status quo ante as a result it is the case that the possession was handed over to the plaintiff. It is at this stage that the present appellant moved an application seeking its impleadment in the suit and after filing his own pleadings. Upon the trial court framing issues, it was specifically noticed while dealing with the issue nos.1 and 2 that as far as the plaintiff is concerned, his deed of lease was not proved as it was an unregistered lease and was hit by Section 49 of the Registration Act as well as it fell foul of the provisions contained in the Transfer of Property Act. The trial court also recorded a categorical findings that on the institution of the suit the plaintiff did not appear to be in possession in as much as no documentary evidence was filed by the plaintiff to indicate his possession and it is only after passing of the order of status quo ante dated 10.12.1998 that the documents of alleged possession were filed and with the aforesaid findings by means of the judgment and decree dated 10.01.2023 the suit of the plaintiff respondent no.1 came to be dismissed. The plaintiff thereafter preferred Regular Civil Appeal which came to be registered Regular Civil Appeal no.38 of 2023 The first appellate court has reversed the findings recorded by the trial court and decreed the suit by means of the judgment and decree dated 03.07.2024. Submission of learned senior counsel is that while passing judgment of reversal it was incumbent upon the first appellate court to have considered the material as well as reasoning recorded by the trial court and once it found that the same was not in consonance with law it could have reversed the finding, however, in the instant case instead of dealing with the issue it ignored completely rather the first appellate court went on a tangent and framed point of determination in as much as it observed that the issue before the first appellate court was whether the possession of the plaintiff could be protected. It is urged that the mere fact that this point of determination was framed indicates that the first appellate court had not understood the controversy in the correct perspective and, thus, the findings recorded by the first appellate court is bad and even otherwise it has not considered that the basic right claimed by the plaintiff respondent no.1 was based on this lease which admittedly was unregistered and another fact that there was no document on record filed by the plaintiff respondent no.1 to indicate that he was in possession on the date of filing of the suit and without reversing such finding by meeting with the reasoning the appellate court was not justified in allowing the suit by means of the judgment and decree dated 03.07.2024. Learned counsel for the plaintiff respondent no.1 has urged that the appellant herein had earlier filed two suits which were dismissed. It has also been stated that the only issue before the trial court as well as first appellate court was in respect of possession which was duly proved and in such circumstances the appeal has been allowed which cannot be said to be bad. Learned senior counsel while refuting the aforesaid submission has pointed out that in so far as the submission made regarding two earlier suits said to have been filed by the appellant is concerned that was more the subject matter of the suit as it never fell part of any pleadings nor there was any evidence led in this regard. Matter requires consideration. The aforesaid second appeal is admitted on the following substantial question of law:- (i) Whether the first appellate court has committed an error in ignoring the fact that the basis of the suit filed by the plaintiff respondent no.1 was referable to a lease of year 1991 for a period of 99 years and that in itself was unregistered it was undisputed fact and yet while ignoring the same any protection could have been granted ? (ii) Whether the first appellate court has erred in failing to consider that specific finding that had been recorded by the trial court that the plaintiff was not in possession of the disputed property on the date of institution of the suit and yet could have granted an injunction to perpetuate an illegality which were right from its conception ? (iii) Whether the order passed by the first appellate court falls foul of provision of Order 41 Rule 31 CPC as far as it relates to the duty of the first appellate court as to how the first appeal is to be considered in light of the decision of the Apex Court in Santosh Hazari vs. Purushottam Tiwari (Dead); AIR 2001 SC 965. Since, the all the parties are duly represented hence no fresh notice is required. Let lower court record be summoned. Steps be taken by the learned counsel for the appellant for summoning the lower court record within a week. As an interim measure, the operation of the impugned judgment and order dated 03.07.2024 shall remain stayed, however, the parties shall maintain status quo as it exists today as no third party rights or any change in the property is permitted. List for final hearing along with second appeal no.173 of 2024 and the record in the month of September, 2025. The connected second appeal no.173 of 2024 is also admitted on the aforesaid questions which have been framed in the present leading appeal. Interim order shall also operates in the connected appeal no.173 of 2024. Order Date :- 11.7.2025 Harshita