High Court
Case Details
-1- Court No. - 18 Case :- SECOND APPEAL No. - 1179 of 2022 Appellant :- Baljeet And 4 Others Respondent :- Surendra Singh And 8 Others Counsel for Appellant :- Raj Kumar Kesari Counsel for Respondent :- Upadhyay,A/B0089 Ankur Singh,Bashishth Narayan Hon'ble Ashutosh Srivastava,J. 1. Heard Shri Raj Kumar Kesari, learned counsel for the appellants and Shri B. N. Upadhyay, learned counsel for the caveator plaintiff/respondent No. 1. 2.
Facts
This is a Second Appeal at the instance of the defendants, against the judgment and decree dated 8.9.2022, 16.9.2022 passed in Civil Appeal No. 109 of 2017 whereby the civil appeal has been dismissed and the Original Suit No. 314 of 2003 has been decreed in toto after setting aside the judgment and decree of the trial court dated 1.9.2017. The defendants-appellants have further been permanently restrained from interfering in the possession of the plaintiffs/respondents over the land in dispute depicted by letters Gha, Cha, Cha, Ga in the plaint map and have been directed to remove the constructions raised over the land in dispute during the pendency of the suit within three months and hand over actual possession to the plaintiffs. 3.
Legal Reasoning
findings of fact and no interference is warranted by this Court in the second appeal so far as the present defendant/appellants are concerned. 8. Having heard the learned counsels for the parties and having perused the record, the Court finds that the present appellants are the sons of Baljeet son of Hargyan, defendant No. 3 before the Trial Court, who is stated to have died during the pendency of the proceedings. A joint written statement was filed by the Baljeet (defendant No. 3) and defendant-respondent Nos. 5 to 7 (defendant Nos. 1, 2 & 4). In the written statement filed, the defendants had denied the right, title and interest of the plaintiffs over the disputed land and asserted it to be recorded as "Koop Banjar" in the revenue records and thus belonging to the Gram Sabha and have stated that the plaintiffs could not have any right over it. The plea of the plaintiffs that they claimed right over the land by virtue of the Section 9 and Section 123 of UPZA&LR Act is contradictory and liable to be disbelieved. The proceedings against the plaintiffs under Section 122 B were erroneously dropped and the decree passed in Suit No. 77 of 1995 was a collusive decree. The plot No. 814 in which the land in dispute is situate is land belonging to the Gram Panchayat. The Gram Panchayat was undertaking construction of Rasta, Naali and laying of new Kharanja after removing of old Kharanja. From the defence set up in the written statement, it is apparent that the defendants have not claimed any right over the land in dispute. A -4- separate written statement has been filed by the defendant/respondent Nos. 8 & 9 (defendant Nos. 5 & 6) i.e. the Collector and Gram Panchayat before the Trial Court. 9. The learned Appellate Court in compliance of the mandatory provisions of Order 41 Rule 31 CPC framed the following points of determination: “1- D;k vihy la0 114@2017 ds vihykFkhZx.k@izfr0 la0 5 o 6 uD'kk okni= esa v{kj ?k] N] p] x ls nf'kZr oknxzLr lEifRr ds ekfyd dkfct o nf[ky gS\ 2- D;k vihy la0 119@2017 ds [email protected] dks oknxzLr lEifRr esa tehankjh mUewyu o fouk'k vf/kfu;e dh /kkjk 9 ds vUrxZr ekfydkuk vf/kdkj izkIr gks pqds gS\ 3- D;k fo}ku vou U;k;ky; }kjk i=koyh ij miyC/k lk{; dk voyksdu dj] fof/k vuqdwy fu.kZ; ikfjr fd;k x;k gS\” 10. The lower Appellate Court while dealing with the above points of determination together has returned categorical findings of fact that the house of the plaintiff/respondents is pucca and they continue in occupation of the same. It is Well established from the evidence on record that the land in dispute is being used as a Sahan of the house by the plaintiffs for years together. The Trial Court has already decreed the suit of the plaintiff in respect of the Sahan land marked by letters Ga, Cha, Sa, Da and Ba, Aa, Cha, Gha in the plaint map. The revenue entry of “Banjar Koop” in respect of Plot No, 814 is only indicative of the fact that a Well is situated over the land in Khasra No. 814. There is no mention of it being Government land or Government Well. Under Section 9 of the UPZA&LR Act private Wells and trees in abadi and buildings are deemed to have settled with the owners or occupiers thereof. Besides, it is admitted by the defendant appellants that there is a pucca house of the plaintiff/respondent adjoining to the disputed land and the doors of the house of the plaintiff/respondent open into the disputed land and the disputed land is used for ingress and egress by the plaintiff/respondent. The plaintiff/respondents have been in possession -5- over the disputed property for a long time and the land is being used as Sahan. The lower Appellate Court has returned a finding that the land in dispute is in the middle of the abadi of the village. There is a common road opposite to the land in dispute. If the land of Sahan has vested with the plaintiff/respondent the land on which the Well is situated is no different. The disputed land inclusive of the land containing the Well stands vested with the plaintiff/respondents under Section 9 of the UPZA&LR Act. Accordingly, the lower Appellate Court has proceeded to dismiss the appeal of the defendant/appellants and decree the suit in toto. 11. In the opinion of the Court, there is no error in the judgment and decree of the lower Appellate Court. The appeal is concluded by findings of fact insofar as the present defendant/appellants are concerned. No substantial question of law arises for consideration in the instant second appeal at the instance of the defendant/appellants. The appeal is dismissed under Order 41 Rule 11 CPC. Let a decree be drawn accordingly. Order Date :- 5.1.2023 Ravi Prakash Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad
Arguments
Learned counsel for the appellants contends that the Suit being Suit No. 314 of 2003 was instituted by the plaintiffs/respondents seeking declaration and for injunction and removal of constructions alleging inter alia that the plaintiffs are owners of a house constructed over the land marked by letters Ka, Kha, Ga, Gha in the plaint map. There is a Well towards the east of their house which was got constructed by the ancestors of the plaintiffs and is depicted by letters Aa, Ba, Ca, Da. The Well is not functional as on date. The house of the plaintiffs has been constructed much earlier to the abolition of the Zamindari and the Well -2- as also land appurtenant to the Well has always been used by the plaintiffs and the land stands settled under Section 9 of the U.P.Z.A.&L.R. Act with the plaintiffs. The Well and the appurtenant land falls in Khasra No. 814 area 0.038 hectares (3 Biswa) and is recorded in the name of Gram Panchayat Pilkhuva Dehat, Pargana Dasna, Tehsil Hapur, District Ghaziabad/defendant No. 5 under mistake. The land is abadi and the plaintiffs who belong to SC category stand entitled to the benefit of Section 123 of U.P.Z.A.&L.R. Act. The defendants have no right to interfere in the rights of the plaintiffs over the land in suit. The defendants in absence of the plaintiffs with the intention to close the ingress and ingress of the plaintiffs dug up foundation and forcefully uprooted the curtain of bricks put up by the plaintiff and threw the bricks in the Well. Hence the cause of action to institute the suit. 4. It is contended by learned counsel for the appellants that the trial court decreed the suit of the plaintiff partly in respect of land lying to the North of the Well marked by letters Ga, Cha, Sa, Da and towards the south of the Well marked by letters Ba, Aa, Cha, Gha treating it to be the Sahan of the plaintiffs, however, the relief so far as the land marked by letters Sa, Da, Ba, Aa containing the Well, the trial court ruled that the plaintiff failed to prove their rights over it. 5. It is next contended that besides the Civil Appeal No. 109 of 2017 filed by the defendants-appellants, two other civil appeals were filed against the judgment and decree of the Trial Court. Civil Appeal No. 114 of 2017 was filed by the State of U.P., through Collector, Hapur and Gram Panchayat, Pilkhuwa Dehat, Civil Appeal No. 119 of 2017 was filed by the plaintiff/respondents. The lower Appellate Court has rejected the Appeals No. 114 of 2017 and 109 of 2017 and allowed the Appeal No. 119 of 2017 and decreed the Suit No. 314 of 2003 in toto. 6. It is vehemently contended by learned counsel for the defendants/appellants that the Courts below having noted the fact that -3- the suit land falling in Khasra No. 814 area 0.038 hectares is land belonging to the Gram Panchayat and category of land recorded is "Koop Banjar" proceeded to decree the suit. In the CH Form-41 entry of "Koop Pucca" is reflected. The Trial Court recorded a clear cut finding that the plaintiffs failed to prove their rights or possession over the land appurtenant to the Well yet the lower Appellate Court has proceeded to decree the suit in toto. 7. Per contra, Shri B. N. Upadhyay, learned counsel for the plaintiffs/respondents submits that the second appeal is concluded by