Sanjay Kumar Mittal and another v. Harbilas Goyal Charitable Trust & others) by which the application filed by defen

seeking direction to defendants to remove their possession over the disputed land. It was pleaded by the plaintiffs-appellants that Plot No.- 627 area 1.012 hectare situated at Qasba- Ujhani, Pargana- Ujhani, Tehsil & District- Budaun belongs to plaintiffs, whereas Plot No.- 633 area 0.392 hectare belongs to plaintiff no.-2 exclusively. Sri Harbilas Goyal Inter College was constructed over Plot No.- 631 and 632. The defendant no.1 is charitable trust running the college, defendant no.2 was Manager and defendant no.3 was the Principal of college. The management of the college made an attempt to encroach the land of plaintiffs and raise building over Plot Nos. 627 and 633, which belong to plaintiffs. The parents of plaintiff no.1 had filed a suit for mandatory injunction seeking demolition of illegal construction raised over the Plot Nos. 627 and 633 and also for delivery of possession over the same. The suit was registered as Suit No.- 171 of 2009 (Vimla Devi and others Vs. Harbilas Goyal Charitable Trust and others). The suit was ultimately decided on the basis of compromise between the parties and the plaintiffs of Suit No.- 171 of 2009 accorded permission to the college for using the disputed land in the interest of students of college. The Harbilas Goyal Inter College was in existence till 2018 and since the permission was granted to the said college in the interest and welfare of students, the disputed land was restored to the plaintiffs. It was also pleaded in the plaint that the management of college had transferred the entire premises of the college including the land in question to defendant nos. 4 to 6. The defendant nos. 4 to 6 had started a new school in the name and style of Harbilas Goyal International School under the management of separate trust. It is further pleaded that the new management of new college again raising construction over disputed land for which earlier permission was granted by the plaintiff of Suit No.- 171 of 2009. The new construction was raised by defendant nos. 4 to 6 who purchased the premises from earlier management defendant nos. 1 to 3. The earlier management has no right or authority to transfer the disputed land to defendant nos. 4 to 6 as the ownership was never transferred in favour of defendant nos. 1 to 3. Since the permission was granted only to use to Harbilas Goyal Inter College run by defendant no.1 and as such it has no authority under the law to transfer the disputed land to defendant nos. 4 to 6 who established a new school in the name and style of Harbilas Goyal International School. The plaintiffs-appellants have no option except to file the present suit, which was registered as Suit No.- 183 of 2023. The suit has been filed with fresh cause of action.

3. The defendant respondents have put in appearance before the trial court and defendant no.1 had moved an application under Order 7 Rule 11 and Order 23 Rule 3A read with Section 151 C.P.C. on 03.10.2023. It was prayed by defendant no.1 that the dispute between the parties has already been settled in Civil Suit No.- 171 of 2019 by way of consent decree and the present suit is not maintainable and is liable to be dismissed.

4. The plaintiff-appellant had filed objection against the application filed by defendant no.1 denying the allegation of application and it was pleaded in the objection that the present application under Order 7 Rule 11 C.P.c. is not maintainable and it has been filed only to delay the disposal of suit. The learned trial court after considering the rival contention of the parties had allowed the Application No.- 34Ka filed under Order 7 Rule 11 C.P.C. vide order dated 23.04.2024 and dismissed the suit.

5. Heard Sri Rahul Sahai, learned counsel for the appellants, Sri Atul Krishna, Advocate holding brief of Sri Rohan Gupta, learned counsel for the respondent no.1 and Sri Shahnawaz Akhtar, learned counsel for the respondent no.2 and perused the record.

6. It is submitted by learned counsel for the appellant that the earlier suit filed by parents of plaintiff-appellant no.1 being Suit No.- 171 of 2009 against defendant nos. 1 to 3, which was decided on the basis of compromise between the parties. The defendant nos. 4 to 6 were not made party in that suit. The plaintiff of Suit No.- 171 of 2009 were agreed to permit the college Harbilas Goyal Inter College to use the disputed land in the interest and welfare of the students of college. The aforesaid college was closed in the year 2018 and there was no existence of college and as such the licence to use given to the aforesaid college has come to an end and the disputed land was returned back to the plaintiffs of that suit. The permission granted by plaintiffs of Suit No.- 171 of 2009 to defendant nos. 1 to 3 only to use of disputed land and the land was never transferred to defendant nos. 1 to 3. Defendant nos. 1 to 3 were only licency and they have no right under the law to transfer the licence or transfer the land to someone else. In the present case the college was closed in the year 2018 and after which the defendant nos. 1 to 3 have transferred the entire property of college to defendant nos. 4 to 6 including the disputed land. The defendant nos. 1 to 3 have no right or authority under the law to transfer the land to defendant nos. 4 to 6, who have started the college in different name as Harbilas Goyal International School, which is run by separate trust. The plaintiff no.1 of present suit is son of plaintiffs of earlier Suit No.- 171 of 2009 and since defendant nos. 4 to 6 were not party in the earlier suit the plaintiffs have right to file fresh suit for eviction of defendant nos. 4 to 6. The present suit has been filed with fresh cause of action and prayer is not for setting aside the compromise decree passed in earlier suit and as such the suit is not barred by res judicata or under Order 23 Rule 3A. The trial court has committed gross illegality in rejecting the suit of plaintiffs-appellants under Order 7 Rule 11 C.P.C., ignoring the fact that defendant nos. 4 to 6 were not party in the earlier suit and earlier suit was decided on the basis of compromise with the parents of plaintiff no.1 (who were plaintiffs in Suit No.- 171 of 2009) and defendant nos. 1 to 3. The defendant nos. 4 to 6 were not party in earlier suit. The learned trial court has also failed to consider that the ownership of disputed land was never transferred to defendant nos. 1 to 3 and they have no authority under the law to transfer the disputed land or lease out the same to defendant nos. 4 to 6.

7. On the other hand, learned counsel appearing on behalf of defendants-respondents have submitted that the disputed land is the same land in both the civil suits and earlier Suit No.- 171 of 2009 were decided on the basis of compromise and the disputed land was handed over to defendant nos. 1 to 3. The plaintiffs had no right to file a fresh suit for the same cause of action and if they are aggrieved with the compromise decree, they can file an application before the same court for recalling of compromise decree and fresh suit for setting aside compromise decree is barred by Order 23 Rule 3A C.P.C. It is further submitted that if any party of the compromise disobeys the terms and conditions of the compromise decree or compromise decree was obtained by playing fraud, the only remedy available to the plaintiffs is to file recall application for recalling of compromise decree and fresh suit is barred. Lastly, it is submitted that since the present suit has been filed by the plaintiffs for similar relief for same disputed land, the suit itself is not maintainable and as such the trial court has rightly dismissed the suit under Order 7 Rule 11 C.P.C.

8. Considered the rival submissions of learned counsel for the parties and perused the record. 9 It is admitted fact that the disputed Plot No.- 627 area 1.012 hectare is belonging to plaintiffs and Plot No.- 633 area 0.392 hectare is belonging to plaintiff no.2, situated at Qasba- Ujhani, Pargana- Ujhani, Tehsil & District- Budaun. The Harbilas Goyal Inter College was constructed over Plot Nos.- 631 and 632, which was adjacent to the land belonging to the plaintiffs. The management of college had tried to encroach the land belonging to the plaintiffs and as such the parents of plaintiff no.1 had filed Suit No.- 171 of 2009 (Vimla Devi and others Vs. Harbilas Goyal Charitable Trust and others), which was decided on the basis of compromise on 11.01.2017. As per compromise decree, the plaintiffs accorded permission to the defendant nos.1 to 3 for use of disputed land in the interest of students of the college. The college was closed in the year 2018 and a new school in the name of Harbilas Goyal International School, Ujhani has been started in the premises of earlier college. After due inquiry it has come in the knowledge of plaintiffs that the defendant nos. 1 to 3 had transferred the entire premises of college to defendant nos. 4 to 6 including the disputed land. The new school has been started by defendant nos. 4 to 6, who were not party in earlier suit. The land was never transferred to defendant nos. 1 to 3 and only permission was granted to use of disputed land and as such the status of defendant nos. 1 to 3 is only as a licency and they have no right or title to transfer the disputed land to defendant nos. 4 to 6. The trial court has failed to consider that the present suit has been filed for the fresh cause of action and there was no relief for setting aside compromise decree and secondly the relief sought in the present suit is against defendant nos. 4 to 6, who were not party in previous suit. The earlier suit was in between the parents of plaintiffs and defendant nos. 1 to 3 and plaintiffs and defendant nos. 4 to 6, both were not party in earlier suit. The learned trial court, while allowing the application filed under Order 7 Rule 11 C.P.C. has failed to consider the aforesaid aspect of the matter and the order impugned suffers from non-consideration of factual aspect of the matter and is liable to be set aside.

10. The first appeal is allowed and the order dated 23.04.2024 passed by Civil Judge (Senior Division), Badaun in Original Suit No.- 183 of 2023 (Sanjay Kumar Mittal and another Vs. Harbilas Goyal Charitable Trust & others) is set aside.

11. The matter is remanded back to the concerned trial court to decide the application filed by defendant no.1 under Order 7 Rule 11 C.P.C. as fresh within a period of three months from date after affording opportunity of hearing to the parties, unless there is any legal impediments. Order Date :- 24.1.2025 Virendra VIRENDRA KUMAR BHARTEEY High Court of Judicature at Allahabad

seeking direction to defendants to remove their possession over the disputed land. It was pleaded by the plaintiffs-appellants that Plot No.- 627 area 1.012 hectare situated at Qasba- Ujhani, Pargana- Ujhani, Tehsil & District- Budaun belongs to plaintiffs, whereas Plot No.- 633 area 0.392 hectare belongs to plaintiff no.-2 exclusively. Sri Harbilas Goyal Inter College was constructed over Plot No.- 631 and 632. The defendant no.1 is charitable trust running the college, defendant no.2 was Manager and defendant no.3 was the Principal of college. The management of the college made an attempt to encroach the land of plaintiffs and raise building over Plot Nos. 627 and 633, which belong to plaintiffs. The parents of plaintiff no.1 had filed a suit for mandatory injunction seeking demolition of illegal construction raised over the Plot Nos. 627 and 633 and also for delivery of possession over the same. The suit was registered as Suit No.- 171 of 2009 (Vimla Devi and others Vs. Harbilas Goyal Charitable Trust and others). The suit was ultimately decided on the basis of compromise between the parties and the plaintiffs of Suit No.- 171 of 2009 accorded permission to the college for using the disputed land in the interest of students of college. The Harbilas Goyal Inter College was in existence till 2018 and since the permission was granted to the said college in the interest and welfare of students, the disputed land was restored to the plaintiffs. It was also pleaded in the plaint that the management of college had transferred the entire premises of the college including the land in question to defendant nos. 4 to 6. The defendant nos. 4 to 6 had started a new school in the name and style of Harbilas Goyal International School under the management of separate trust. It is further pleaded that the new management of new college again raising construction over disputed land for which earlier permission was granted by the plaintiff of Suit No.- 171 of 2009. The new construction was raised by defendant nos. 4 to 6 who purchased the premises from earlier management defendant nos. 1 to 3. The earlier management has no right or authority to transfer the disputed land to defendant nos. 4 to 6 as the ownership was never transferred in favour of defendant nos. 1 to 3. Since the permission was granted only to use to Harbilas Goyal Inter College run by defendant no.1 and as such it has no authority under the law to transfer the disputed land to defendant nos. 4 to 6 who established a new school in the name and style of Harbilas Goyal International School. The plaintiffs-appellants have no option except to file the present suit, which was registered as Suit No.- 183 of 2023. The suit has been filed with fresh cause of action.

3. The defendant respondents have put in appearance before the trial court and defendant no.1 had moved an application under Order 7 Rule 11 and Order 23 Rule 3A read with Section 151 C.P.C. on 03.10.2023. It was prayed by defendant no.1 that the dispute between the parties has already been settled in Civil Suit No.- 171 of 2019 by way of consent decree and the present suit is not maintainable and is liable to be dismissed.

4. The plaintiff-appellant had filed objection against the application filed by defendant no.1 denying the allegation of application and it was pleaded in the objection that the present application under Order 7 Rule 11 C.P.c. is not maintainable and it has been filed only to delay the disposal of suit. The learned trial court after considering the rival contention of the parties had allowed the Application No.- 34Ka filed under Order 7 Rule 11 C.P.C. vide order dated 23.04.2024 and dismissed the suit.

5. Heard Sri Rahul Sahai, learned counsel for the appellants, Sri Atul Krishna, Advocate holding brief of Sri Rohan Gupta, learned counsel for the respondent no.1 and Sri Shahnawaz Akhtar, learned counsel for the respondent no.2 and perused the record.

6. It is submitted by learned counsel for the appellant that the earlier suit filed by parents of plaintiff-appellant no.1 being Suit No.- 171 of 2009 against defendant nos. 1 to 3, which was decided on the basis of compromise between the parties. The defendant nos. 4 to 6 were not made party in that suit. The plaintiff of Suit No.- 171 of 2009 were agreed to permit the college Harbilas Goyal Inter College to use the disputed land in the interest and welfare of the students of college. The aforesaid college was closed in the year 2018 and there was no existence of college and as such the licence to use given to the aforesaid college has come to an end and the disputed land was returned back to the plaintiffs of that suit. The permission granted by plaintiffs of Suit No.- 171 of 2009 to defendant nos. 1 to 3 only to use of disputed land and the land was never transferred to defendant nos. 1 to 3. Defendant nos. 1 to 3 were only licency and they have no right under the law to transfer the licence or transfer the land to someone else. In the present case the college was closed in the year 2018 and after which the defendant nos. 1 to 3 have transferred the entire property of college to defendant nos. 4 to 6 including the disputed land. The defendant nos. 1 to 3 have no right or authority under the law to transfer the land to defendant nos. 4 to 6, who have started the college in different name as Harbilas Goyal International School, which is run by separate trust. The plaintiff no.1 of present suit is son of plaintiffs of earlier Suit No.- 171 of 2009 and since defendant nos. 4 to 6 were not party in the earlier suit the plaintiffs have right to file fresh suit for eviction of defendant nos. 4 to 6. The present suit has been filed with fresh cause of action and prayer is not for setting aside the compromise decree passed in earlier suit and as such the suit is not barred by res judicata or under Order 23 Rule 3A. The trial court has committed gross illegality in rejecting the suit of plaintiffs-appellants under Order 7 Rule 11 C.P.C., ignoring the fact that defendant nos. 4 to 6 were not party in the earlier suit and earlier suit was decided on the basis of compromise with the parents of plaintiff no.1 (who were plaintiffs in Suit No.- 171 of 2009) and defendant nos. 1 to 3. The defendant nos. 4 to 6 were not party in earlier suit. The learned trial court has also failed to consider that the ownership of disputed land was never transferred to defendant nos. 1 to 3 and they have no authority under the law to transfer the disputed land or lease out the same to defendant nos. 4 to 6.

7. On the other hand, learned counsel appearing on behalf of defendants-respondents have submitted that the disputed land is the same land in both the civil suits and earlier Suit No.- 171 of 2009 were decided on the basis of compromise and the disputed land was handed over to defendant nos. 1 to 3. The plaintiffs had no right to file a fresh suit for the same cause of action and if they are aggrieved with the compromise decree, they can file an application before the same court for recalling of compromise decree and fresh suit for setting aside compromise decree is barred by Order 23 Rule 3A C.P.C. It is further submitted that if any party of the compromise disobeys the terms and conditions of the compromise decree or compromise decree was obtained by playing fraud, the only remedy available to the plaintiffs is to file recall application for recalling of compromise decree and fresh suit is barred. Lastly, it is submitted that since the present suit has been filed by the plaintiffs for similar relief for same disputed land, the suit itself is not maintainable and as such the trial court has rightly dismissed the suit under Order 7 Rule 11 C.P.C.

8. Considered the rival submissions of learned counsel for the parties and perused the record. 9 It is admitted fact that the disputed Plot No.- 627 area 1.012 hectare is belonging to plaintiffs and Plot No.- 633 area 0.392 hectare is belonging to plaintiff no.2, situated at Qasba- Ujhani, Pargana- Ujhani, Tehsil & District- Budaun. The Harbilas Goyal Inter College was constructed over Plot Nos.- 631 and 632, which was adjacent to the land belonging to the plaintiffs. The management of college had tried to encroach the land belonging to the plaintiffs and as such the parents of plaintiff no.1 had filed Suit No.- 171 of 2009 (Vimla Devi and others Vs. Harbilas Goyal Charitable Trust and others), which was decided on the basis of compromise on 11.01.2017. As per compromise decree, the plaintiffs accorded permission to the defendant nos.1 to 3 for use of disputed land in the interest of students of the college. The college was closed in the year 2018 and a new school in the name of Harbilas Goyal International School, Ujhani has been started in the premises of earlier college. After due inquiry it has come in the knowledge of plaintiffs that the defendant nos. 1 to 3 had transferred the entire premises of college to defendant nos. 4 to 6 including the disputed land. The new school has been started by defendant nos. 4 to 6, who were not party in earlier suit. The land was never transferred to defendant nos. 1 to 3 and only permission was granted to use of disputed land and as such the status of defendant nos. 1 to 3 is only as a licency and they have no right or title to transfer the disputed land to defendant nos. 4 to 6. The trial court has failed to consider that the present suit has been filed for the fresh cause of action and there was no relief for setting aside compromise decree and secondly the relief sought in the present suit is against defendant nos. 4 to 6, who were not party in previous suit. The earlier suit was in between the parents of plaintiffs and defendant nos. 1 to 3 and plaintiffs and defendant nos. 4 to 6, both were not party in earlier suit. The learned trial court, while allowing the application filed under Order 7 Rule 11 C.P.C. has failed to consider the aforesaid aspect of the matter and the order impugned suffers from non-consideration of factual aspect of the matter and is liable to be set aside.

10. The first appeal is allowed and the order dated 23.04.2024 passed by Civil Judge (Senior Division), Badaun in Original Suit No.- 183 of 2023 (Sanjay Kumar Mittal and another Vs. Harbilas Goyal Charitable Trust & others) is set aside.

11. The matter is remanded back to the concerned trial court to decide the application filed by defendant no.1 under Order 7 Rule 11 C.P.C. as fresh within a period of three months from date after affording opportunity of hearing to the parties, unless there is any legal impediments. Order Date :- 24.1.2025 Virendra VIRENDRA KUMAR BHARTEEY High Court of Judicature at Allahabad