03 January, 2025 Maharaj Singh & Another v. Pandit Purnanand Shiksha Samiti & Others

the appellants/plaintiffs for permanent injunction was dismissed and counter-claim of respondent no.1/defendant no.7 for possession of the property decreed against appellants/plaintiffs, and the judgments in two Civil Appeal Nos. 26 & 27 of 2016 dated 30.01.2023 passed by the 1st Additional District & Sessions Judge, Udham Singh Nagar.

3. By impugned judgments dated

30.01.2023, the learned 1st Additional District & Sessions Judge, Udham Singh Nagar confirmed the judgments of dismissal of suit of permanent injunction & decreeing the counter-claim of respondent no.1/defendant no.7 for possession of suit property. Submissions on behalf of the Appellants

4. Mr. M. S. Tyagi, learned Senior Counsel assisted by Mr. Ramji Shrivastava, counsel for the appellants would submit that the learned trial court and the Appellate Court grossly erred in not appreciating the fact that the Division Bench of this Court in its judgment in Writ Petition (PIL) No. 1197 of 2005 together with Writ Petition (M/S) No. 1125 of 2007 (Annexure No. 5 to the Second Appeal) had categorically held in paragraph no. 36 of its judgment 2 dated 25.11.2008 that the lease granted by the State Government favour of the respondent no.4 Shiksha Samiti (respondent no.1/defendant no.7 in present second appeal) shall be restricted only to the extent of the area, which was in its possession i.e. (i) The land ad-measuring 0.016 hectare of Plot No. 363Kha (ii) Land ad-measuring 0.387 hectare of Plot No. 364 Total area 0.403 hectare of Village Amritpur, Tehsil Jaspur.

5. He would further submit that the alleged Lease Deed stated in paragraph no. 21 of the written statement/counter respondent no.1/defendant no.7 has been restricted with the observation by the Division Bench, in view of the judgment in Writ Petition (PIL) No. 1197 of 2005, only to the land 0.403 hectare; that, it was specifically observed by the Division Bench that the Lease Deed cannot be given effect to regarding the rest of the land comprised in Plot No. 363Kha and Plot No. 364 of Village Amritpur, Tehsil Jaspur as the same is invalid in view of the provision of Section 107(2) of The U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961; that, notwithstanding, this clear observation of the Division Bench, the trial court erred in not considering this fact that no decree of possession could have been passed on the basis of counter claim of respondent no.1/defendant no.7 on the basis of this lease deed, which had already been held inoperative in respect of rest of the land. 3

6. He would further submit that the counsel for the respondent no.1/defendant no.7 in the said Writ Petition (PIL) conveniently concealed the fact from the Division Bench that the respondent no.1/defendant no.7 had already filed a counter- claim in Original Suit No. 77 of 2002 by way of the counter-claim.

7. He would further submit that no decree of possession could be passed in favour of the person, who has no title to the property even if the defendant is the trespasser of the land; that, in view of the fact that when the Division Bench of this Court had already stated in its observation (supra) that the Lease Deed is restricted only to 0.016 hectare comprised in Plot No.363Kha and 0.387 hectare in Plot No. 364 situated at Village Amritpur, Tehsil Jaspur, then the respondent no.1/defendant no.7 did not have claim or interest consequently any right to pray for possession of suit property in the counter- claim, hence, no decree of possession could have been passed; that, this point was raised in the first appeal but the first Appellate Court also failed to appreciate this position of law.

8. He would further submit that the Writ Petition (PIL), stated above, neither was filed by the appellants, nor they were party to that PIL and another writ petition which was disposed of by the Division Bench; that, had the appellants been party to that PIL and connected writ petition, then the appellants would have brought this fact before the 4 Division Bench that respondent no.1/defendant no.7 had filed counter claim in the original suit giving rise to the second appeal. Hence these Second Appeals. Submissions on behalf of respondent no.1/defendant no.7.

9. Per contra, learned counsel respondent no.1/defendant no.7 would contest the submissions made by the learned Senior Counsel for the appellants and would submit that the appellants have conveniently not disclosed the fact that in another Original Suit No. 19 of 2002 filed by the appellants for decree of permanent injunction in respect of the suit property, the appellants were held to be the encroachers on the suit property and their suit for permanent injunction was dismissed.

10. He would further submit that in present Second Appeal No. 55 of 2023, the appellants were directed by this Court vide order dated 28.06.2023 for filing the judgment dated 04.05.2005 passed by the trial court in Original Suit No. 19 of 2002; that, same was complied with appellants/plaintiffs want to mislead the Court by concealing the fact that appellants/plaintiffs have been held encroachers in respect of the suit property in Original Suit No. 19 of 2002 filed by themselves.

11. He would further submit contention of the appellants in respect of non- 5 consideration of the judgment passed by the Division Bench of this Court in Writ Petition (PIL) No. 1197 of 2005 dated 25.11.2008 is also misplaced.

12. Learned counsel respondent no.1/defendant no.7 would further submit that in the trial court, the appellants could not produce any Lease Deed in the trial court as stated by them in paragraph nos. 1 & 2 of their plaint, therefore, the trial court was legally correct in law and fact in not granting the relief of permanent injunction.

13. Considered and perused the record in the light of the submissions made by learned counsel for the respective parties.

14. There is no force in the submission of learned Senior Counsel for the appellants/plaintiffs that no decree of possession of the land comprised in the Lease Deed executed in favour of the respondent no.1/defendant no.7 by the Government other than the land which had been restricted by the Division Bench of this Court judgment dated

25.11.2008 in Writ Petition (PIL) No. 1197 of 2005 can be granted. By its impugned judgment, the trial court after detailed discussions on the facts and evidence on record has categorically stated that the judgment of the Division Bench in above Writ Petition (PIL) (supra) is considered and lease grant in favour of the respondent no.1/defendant no.7 can be given effect to in respect of the land other than the land 6 restricted by the Division Bench of this Court in its judgment dated 25.11.2008. The learned trial court in its impugned judgment categorically reproduced the relevant part of the judgment of Division Bench in paragraph no. 34 of its impugned judgment and further observed in paragraph no. 46 that, “46. tgka rd izfroknhx.k la[;k&7 dks izkIr gksus okys vuqrks’k dk iz”u gS] rks okn fcUnq la[;k&7] 9 ds fuLrkj.k ds vkyksd esa] ;g Li’V gS fd izfroknh la[;k&7 dks iz”uxr Hkwfe f”k{k.k laLFkku pykus gsrq yht ij vkcafVr dh x;h gS rFkk ekuuh; mPPk U;k;ky; uSuhrky }kjk Writ Petition No.1197/05, ,oe Writ Petition No.1125/07 esa ikfjr fu.kZ; fnukad 25-11-2008 esa dfFkr yht iz”uxr Hkwfe [kljk la[;k&363[k ds jdck 0-016 gS0] [kljk la[;k&364 ds jdck 0-387 gS0 dqy jdck 0-403 gS0 xzke ve`riqj] rglhy tliqj] rd gh lhfer (Restrict) j[kus ds vkns”k ikfjr fd;s gSA vr% izfroknh la[;k&7 dks ek= iz”uxr Hkwfe ds mijksDr of.kZr fgLls ij ls] oknhx.k dks csn[ky djus dk vf/kdkj izkIr gSA rnuqlkj izfroknh la[;k&7 dk Counter Claim vkaf”kd :Ik ls Lohdkj fd;s tkus ;ksX; gSA" (in respect of the relief in issue nos. 7 & 9, it is clear that the respondent no. 1/defendant no.7 was granted the lease of the land in question for running an educational institution and the Hon’ble High Court vide judgment dated 25.11.2008 in Writ Petition (PIL) No. 1197 of 2005 along with Writ Petition (M/S) No. 1125 of 2007 has observed that lease is restricted to total area of land

0.403 hectare comprised in Khasra No. 363Kha and 364 situated at Village Amritpur, Tehsil Jaspur, therefore, the respondent no.1/defendant no.7 has right to get possession of this much land, consequently, the counter claim can be decreed in part.)

15. Learned Senior Counsel 7 appellants/plaintiffs would fairly concede the fact that the Lease Deeds, which the appellants/plaintiffs have alleged to have been executed in their favour in the year 1996, were not produced and proved before the trial court. As these Lease Deeds were the main anchor for their relief for decree of permanent injunction, therefore, the same was correctly decreed to the appellants.

16. Last but not least, the counsel for the appellants/plaintiffs did not contest the submission of the respondent no.1/defendant no.7 that in Original Suit No. 19 of 2002 filed by appellants/plaintiffs for identical relief of permanent injunction, appellants/plaintiffs encroachers on the suit property consequently, that suit was dismissed.

17. In view of above discussion, this Court is of considered view that the learned Senior Counsel for the appellants/plaintiffs could not make out any case that any substantial question of law arises because of some patent incorrectness in impugned judgments or non-application of mind by the trial court and the First Appellate Court, hence there is no ground in the present appeals.

18. In such view of the matter, the trial court rightly dismissed appellants/plaintiffs and decreed the counter-claim of respondent no.1/defendant no.7. More so, the First Appellate Court being fully convinced with the findings of the trial court, too rightly dismissed the 8 appeal. As such, there is correct concurrent finding of fact and law against the appellants/plaintiffs, therefore, this Court is of the opinion that no substantial question of law arises in these two Second Appeals.

19. Resultantly, the Second Appeals are hereby dismissed in limine.

20. No order as to costs.

03.01.2025 (Vivek Bharti Sharma, J.) Akash AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=5a2e7119d3eefb9c3389d15c3446ac8c20a28e 181142c2e31d8b803058deb4ec, postalCode=263001, st=UTTARAKHAND, serialNumber=27096A1625377537A487DEE49224C89 1823FC6A0334628B21E516047ED4F22F7, cn=AKASH 9