High Court
Case Details
Neutral Citation No. - 2024:AHC:121573 Court No. - 36 Case :- SECOND APPEAL No. - 512 of 2024 Appellant :- Ram Vishal Respondent :- Ramraj Counsel for Appellant :- Ram Swaroop (Singh),Shivakant Singh Counsel for Respondent :- Ramesh Prasad Hon'ble Kshitij Shailendra,J. 1. Heard Sri Ram Swaroop Singh, learned counsel for the plaintiff- appellant and Sri Ramesh Prasad, learned counsel for the defendant-respondent. 2. The plaintiff filed Original Suit No.432 of 2014 claiming a
Legal Reasoning
decree for permanent prohibitory injunction against the defendant- respondent. 3. The trial court dismissed the suit and the lower appellate court has dismissed the civil appeal filed by the plaintiff. 4. The case of the plaintiff, as pleaded in the plaint, was that his house is situated inside the abadi over which the plaintiff had been tying his cattle since before the Abolition of Zamindari. Injunction was claimed in respect of property allegedly depicted by letters क, ख, ग, घ in the plaint map. 5. The defence contained in the written statement was based upon a registered sale deed on 06.02.2001 executed by Ram Pratap in favour of the defendant and it was alleged that no description or boundaries of the property has been given in the plaint. 6. The trial court dismissed the suit by observing that both the parties based their claim and defence at the strength of different sale deeds. Amin Commissioner was appointed, who submitted a report against which no party filed objections. The trial court compared the boundaries of the property described in the sale deeds with the Amin report and arrived at a conclusion that whereas the disputed spot completely matches with the boundaries described in the defendant's sale deed, the same do not match with the sale deed relied upon by the plaintiff. The court also discussed the dimensions of the property and held that the plaintiff had failed to establish his title and possession over the land. 7. The plaintiff filed civil appeal. The appellate court after discussing the oral and documentary evidence arrived at the same conclusion.
Legal Reasoning
8. Learned counsel for the appellant submits that once the Amin Commissioner had submitted its report, it cannot be said that the land is not identifiable. However, learned counsel fairly admits that in the plaint, no details of the plot purchased by the plaintiff were given and even the plaint map did not describe the property by letters क, ख, ग, घ, although injunction was claimed on the property shown by said letters. He further submits that even if there was some flaw in the plaint averments, the court should have granted opportunity to the plaintiff-appellant to amend the plaint and the suit could not be dismissed on this ground alone. In support of his submission, learned counsel has placed reliance upon judgment of Patna High Court in Nagar Khan and others Vs. Gopi Ram Agarwal: AIR 1976 Patna 2 with special emphasis on paragraph no.5 thereof. He has further placed reliance on Apex Court's judgment in Zarif Ahmad (D) through Lrs. & another Vs. Mohd. Farooq: (2015) 13 SCC 673 and referred to paragraphs no.10 and 11 thereof. 9. On the other hand, learned counsel for the respondents submits that once the courts below have compared the Amin report with the plaint assertions as well as to sale deeds brought on record and have arrived at a conclusion that the property in respect whereof the injunction was claimed did not match with the document of alleged title, there is no illegality in the judgments of the courts below. 10. Having heard learned counsel for the parties, I find that the plaint was completely silent about the gata number, area, boundaries or any record of rights. As such, it was completely short of statutory requirements contained under Order 7 Rule 3 CPC which reads as under:- "Order 7 Rule 3. Where the subject-matter of the suit is immovable property.- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers." 11. The plaintiff could get some benefit in the event there was no gata number etc. but in that event had the property been identified by boundaries or numbers in a record of settlement or survey. Interestingly, letters क, ख, ग, घ contained in the only relief claimed do not find mention in the plaint map and, therefore, even in absence of any evidence, there was no pleading so as to justify the claim set up for injunction. 12. As far as the judgments cited by the learned counsel for the appellant, the Patna High Court in the case of Nagar Khan (supra) observed that the court should pass a decree which is easily executable on the spot and, therefore, if any discrepancy is found in the identification of the property, passing of such decree should be avoided and the court in such cases may call upon the plaintiff to furnish more particulars even to the extent of allowing the amendment in the plaint. 13. In the present case, once the plaintiff lost the claim from the trial court, he was not precluded from seeking amendment in the plaint at the appellate stage but no such step was taken by him. The plaintiff pressed the same plaint before the appellate court and there was no other material before the appellate court so as to accept the grounds of challenge to the trial court's decree. Even otherwise, the judgment of Patna High Court deals with a case where suit is decreed and problems may arise at the time of execution of decree and, therefore, is of no help to the appellant who is before the court after his suit for injunction has been dismissed by both the courts below. 14. As far as Hon'ble Apex Court's judgment in Zarif Ahmad (supra), the Apex Court was dealing with a case where the property in dispute was clearly described by boundaries and its municipal number and, therefore, the Apex Court arrived at a conclusion that the decree passed by the trial court is executable and contrary argument was dispelled. The facts of the present case are totally different where the plaint is completely silent about gata number, area, boundaries, municipal number, record of survey, or even measurement of the property. 15. In the considered opinion of the Court, the plaintiff has utterly failed to establish his title and possession over the land in dispute. The Court does not find any illegality in the judgments passed by the courts below. 16. No substantial question of law arises for consideration and the findings recorded by the courts below being pure findings of fact do not require any interference in second appellate jurisdiction. 17. The second appeal has no force and is, accordingly, dismissed. Order Date :- 30.7.2024 AKShukla/-