Smt. Kamla Shukla And Another vs Counsel for Appellant(s)

Smt. Kamla Shukla And Another Smt. Zarina Khan And 6 Others Versus .....Appellant(s) .....Respondent(s) Counsel for Appellant(s) Counsel for Respondent(s) : Amal Rastogi, Shobhit Singh : Seema Upadhyay Court No. - 7 HON'BLE JASPREET SINGH, J.

1. Heard Sri Amal Rastogi, learned counsel for the appellants. Ms. Seema Upadhyay, learned counsel has put in appearance on behalf of respondent no. 5 and Sri Sankalp Shukla who has put in appearance in person.

2. This Court on 26th September, 2025 had passed the following order which reads as under:- "1. Heard Sri Amal Rastogi, learned counsel for the appellants. Ms. Seema Upadhyay, learned counsel has put in appearance on behalf of respondent no. 5 on caveat and Sri Sankalp Shukla has put in appearance in person.

2. These are two appeals filed by the plaintiff-appellants, whereby their regular suit No. 429 of 2006 seeking a decree of permanent injunction was dismissed by means of judgment and decree dated 18.08.2018.

3. The two appeals under Section 96 C.P.C. came to be filed by 2 SAPL No. 160 of 2025 the appellants, one on account of dismissal of the suit no. 426 of 2006 and the other as the counter claim filed by the respondent no.1 had been decreed.

4. The First Appellate Court dismissed both the appeals by means of judgment and decree dated 19.09.2025 affirming the dismissal possession/eviction of the appellants from the disputed property. suit and decreeing counter

5. It is in the aforesaid backdrop that a mention was made before this Court on 25th September, 2025 that two second appeals have been preferred before this Court and since a warrant of possession has already been issued by the Executing Court, accordingly, if the appeals are not taken up with expedition and especially in light of the oncoming Dashehra recess, the appellants would suffer irreparably injury as they are under an imminent threat of being dispossessed.

6. In view thereof, the Court had permitted the second appeals to be taken up and it is in the aforesaid backdrop that the two appeals have been placed before this Court.

7. Since the dispute, parties and the issues in both the second appeals are same and common, hence, they are being considered by this common order.

8. Upon hearing the learned counsel for the appellants on admission, it is urged that a suit was filed by the plaintiffs indicating that they are the bonafide tenants of the premises in question on a monthly rent of Rs. 100/- and since the private respondent no. 1 attempted to dispossess the appellants, hence, a suit for permanent injunction was filed.

9. It is also the case that the defendants while filing the written statement had introduced a counter claim for possession. The plaintiff filed his written statement to the counter claim and primarily raised two issues (I) regarding the limitation and the other (ii) indicating that since the defendant had treated the plaintiffs to be unauthorized occupants, accordingly, a decree of possession cannot be camouflaged by a decree in the nature of mandatory injunction and to that effect the counter claim be dismissed.

10. Upon exchange of pleadings, the Trial Court did not find that the plaintiff was able to establish his relationship of landlord and tenant, accordingly, the suit for permanent injunction was dismissed and the counter claim was allowed. 3 SAPL No. 160 of 2025

11. The same sentiments have been echoed by the First Appellate Court and it is in the aforesaid backdrop that the learned counsel for the appellant urged that the instant appeal involved substantial questions of law.

12. This Court finds that prima facie in so far as the issue relating to the relationship of landlord and tenant is concerned both the courts have concurrently held that the plaintiff could not establish the said relationship. This being a pure question of fact, coupled with the fact the learned counsel for the appellant also could not demonstrate as to how the said findings are erroneous. Hence, this Court is not inclined to re-enter or the re-appraise the evidence for the aforesaid purpose.

13. Once the relationship has not been made out and apparently a counter claim of possession has been sought, accordingly that is also based on appreciation of evidence and no illegality could be pointed out, hence, this Court is not inclined to admit the appeals as the Court finds that there are no substantial questions of law. Moreso, if the tenancy is not proved and the title of the respondent is not in dispute and a counter claim has been decreed, then the Court does not find any illegality in its impugned judgment.

14. At this stage, learned counsel for the appellants submitted that the appellants be granted some reasonable time to vacate the premise since the appellant no. 1 is a senior citizen more than 70 years of age.

15. The learned counsel for the respondents no. 5 and Sri Sankalp Shukla, respondent no. 6 in person, both stated that the they have no objection in case if the appellants vacate the premise within such time to be fixed by the Court.

16. This Court put the learned counsel for the appellants to notice and seek instructions as to whether the appellants would furnish an undertaking before this Court that they would pay a sum of Rs. 20,000/- in the name of the respondent no. 5 through a bank draft and also give an undertaking simultaneously on affidavit that they would vacate the premises by 30th November, 2025, to be filed before this Court on 06th October, 2025. Upon seeking instructions, the learned counsel for the appellants submitted that the appellants are ready to furnish the undertaking as well as pay the amount as noticed by this Court.

17. Apparently, it is also made clear that in case if after furnishing the undertaking the appellants authorizing the same, 4 SAPL No. 160 of 2025 this shall be treated as a contempt of order passed by this Court. In view thereof, this matter shall now come up before this Court on 06th October, 2025 only for the purposes of filing of the undertaking as well as handing over of the demand draft for the aforesaid amount to the respondent no. 5.

18. It has also been informed that the execution case is listed on 29th October, 2025. Since this Court has kept the matter for 06th October, 2025, the Executing Court shall ensure that the decree is not executed till the 07th October, 2025.

19. List this matter on 06th October, 2025, as fresh for further hearing."

3. Today, when the matter was taken up, Sri Amal Rastogi, learned counsel for the appellants submits that the appellants are not ready to abide by the undertaking given before this Court which was recorded on 26.09.2025, however, the appellant is ready to handover the possession of the property to the respondents.

4. Be that as it may, as evident from the order dated 26.09.2025, the Court had heard the learned counsel for the parties on the urgency mentioned and thereafter on admission of the matter. On the statement given based on the instructions received from the appellants, by the learned counsel for the appellant, time was granted to the appellants to furnish an undertaking that they would vacate the premises by 30th November, 2025 subject to Rs. 20,000/- as a bank draft to be produced before the Court today.

5. Since the execution proceedings were going on, accordingly, the Court observed that the Executing Court shall not execute the decree till 07th October, 2025.

6. Sri Amal Rastogi, learned counsel for the appellants submits that since the appellants are not in a position to deposit the aforesaid amount, however, the Court had already heard the matter and today since the appellants have resiled from their undertaking and they have failed to comply with the said order and moreover in its order dated 26th September, 2025 that no substantial question is involved in these two second appeals, hence, this Court dismisses the aforesaid two second appeals on payment of cost of Rs. 20,000/- which shall be paid by the appellant to the respondents within a period of three weeks from today. In case if the said amount is not paid to the respondents, the same shall be recovered as arrears of land revenue by the District Magistrate concerned and the Executing Court shall forward a copy of this order to the District Magistrate for its compliance. The embargo placed on the Executing Court is also removed. The Executing Court shall ensure that the decree passed by the court concerned is duly executed in accordance with law. 5 SAPL No. 160 of 2025

7. With the aforesaid observations, both the appeals are dismissed. October 6, 2025 Asheesh (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Kamla Shukla And Another Smt. Zarina Khan And 6 Others Versus .....Appellant(s) .....Respondent(s) Counsel for Appellant(s) Counsel for Respondent(s) : Amal Rastogi, Shobhit Singh : Seema Upadhyay Court No. - 7 HON'BLE JASPREET SINGH, J.

1. Heard Sri Amal Rastogi, learned counsel for the appellants. Ms. Seema Upadhyay, learned counsel has put in appearance on behalf of respondent no. 5 and Sri Sankalp Shukla who has put in appearance in person.

2. This Court on 26th September, 2025 had passed the following order which reads as under:- "1. Heard Sri Amal Rastogi, learned counsel for the appellants. Ms. Seema Upadhyay, learned counsel has put in appearance on behalf of respondent no. 5 on caveat and Sri Sankalp Shukla has put in appearance in person.

2. These are two appeals filed by the plaintiff-appellants, whereby their regular suit No. 429 of 2006 seeking a decree of permanent injunction was dismissed by means of judgment and decree dated 18.08.2018.

3. The two appeals under Section 96 C.P.C. came to be filed by 2 SAPL No. 160 of 2025 the appellants, one on account of dismissal of the suit no. 426 of 2006 and the other as the counter claim filed by the respondent no.1 had been decreed.

4. The First Appellate Court dismissed both the appeals by means of judgment and decree dated 19.09.2025 affirming the dismissal possession/eviction of the appellants from the disputed property. suit and decreeing counter

5. It is in the aforesaid backdrop that a mention was made before this Court on 25th September, 2025 that two second appeals have been preferred before this Court and since a warrant of possession has already been issued by the Executing Court, accordingly, if the appeals are not taken up with expedition and especially in light of the oncoming Dashehra recess, the appellants would suffer irreparably injury as they are under an imminent threat of being dispossessed.

6. In view thereof, the Court had permitted the second appeals to be taken up and it is in the aforesaid backdrop that the two appeals have been placed before this Court.

7. Since the dispute, parties and the issues in both the second appeals are same and common, hence, they are being considered by this common order.

8. Upon hearing the learned counsel for the appellants on admission, it is urged that a suit was filed by the plaintiffs indicating that they are the bonafide tenants of the premises in question on a monthly rent of Rs. 100/- and since the private respondent no. 1 attempted to dispossess the appellants, hence, a suit for permanent injunction was filed.

9. It is also the case that the defendants while filing the written statement had introduced a counter claim for possession. The plaintiff filed his written statement to the counter claim and primarily raised two issues (I) regarding the limitation and the other (ii) indicating that since the defendant had treated the plaintiffs to be unauthorized occupants, accordingly, a decree of possession cannot be camouflaged by a decree in the nature of mandatory injunction and to that effect the counter claim be dismissed.

10. Upon exchange of pleadings, the Trial Court did not find that the plaintiff was able to establish his relationship of landlord and tenant, accordingly, the suit for permanent injunction was dismissed and the counter claim was allowed. 3 SAPL No. 160 of 2025

11. The same sentiments have been echoed by the First Appellate Court and it is in the aforesaid backdrop that the learned counsel for the appellant urged that the instant appeal involved substantial questions of law.

12. This Court finds that prima facie in so far as the issue relating to the relationship of landlord and tenant is concerned both the courts have concurrently held that the plaintiff could not establish the said relationship. This being a pure question of fact, coupled with the fact the learned counsel for the appellant also could not demonstrate as to how the said findings are erroneous. Hence, this Court is not inclined to re-enter or the re-appraise the evidence for the aforesaid purpose.

13. Once the relationship has not been made out and apparently a counter claim of possession has been sought, accordingly that is also based on appreciation of evidence and no illegality could be pointed out, hence, this Court is not inclined to admit the appeals as the Court finds that there are no substantial questions of law. Moreso, if the tenancy is not proved and the title of the respondent is not in dispute and a counter claim has been decreed, then the Court does not find any illegality in its impugned judgment.

14. At this stage, learned counsel for the appellants submitted that the appellants be granted some reasonable time to vacate the premise since the appellant no. 1 is a senior citizen more than 70 years of age.

15. The learned counsel for the respondents no. 5 and Sri Sankalp Shukla, respondent no. 6 in person, both stated that the they have no objection in case if the appellants vacate the premise within such time to be fixed by the Court.

16. This Court put the learned counsel for the appellants to notice and seek instructions as to whether the appellants would furnish an undertaking before this Court that they would pay a sum of Rs. 20,000/- in the name of the respondent no. 5 through a bank draft and also give an undertaking simultaneously on affidavit that they would vacate the premises by 30th November, 2025, to be filed before this Court on 06th October, 2025. Upon seeking instructions, the learned counsel for the appellants submitted that the appellants are ready to furnish the undertaking as well as pay the amount as noticed by this Court.

17. Apparently, it is also made clear that in case if after furnishing the undertaking the appellants authorizing the same, 4 SAPL No. 160 of 2025 this shall be treated as a contempt of order passed by this Court. In view thereof, this matter shall now come up before this Court on 06th October, 2025 only for the purposes of filing of the undertaking as well as handing over of the demand draft for the aforesaid amount to the respondent no. 5.

18. It has also been informed that the execution case is listed on 29th October, 2025. Since this Court has kept the matter for 06th October, 2025, the Executing Court shall ensure that the decree is not executed till the 07th October, 2025.

19. List this matter on 06th October, 2025, as fresh for further hearing."

3. Today, when the matter was taken up, Sri Amal Rastogi, learned counsel for the appellants submits that the appellants are not ready to abide by the undertaking given before this Court which was recorded on 26.09.2025, however, the appellant is ready to handover the possession of the property to the respondents.

4. Be that as it may, as evident from the order dated 26.09.2025, the Court had heard the learned counsel for the parties on the urgency mentioned and thereafter on admission of the matter. On the statement given based on the instructions received from the appellants, by the learned counsel for the appellant, time was granted to the appellants to furnish an undertaking that they would vacate the premises by 30th November, 2025 subject to Rs. 20,000/- as a bank draft to be produced before the Court today.

5. Since the execution proceedings were going on, accordingly, the Court observed that the Executing Court shall not execute the decree till 07th October, 2025.

6. Sri Amal Rastogi, learned counsel for the appellants submits that since the appellants are not in a position to deposit the aforesaid amount, however, the Court had already heard the matter and today since the appellants have resiled from their undertaking and they have failed to comply with the said order and moreover in its order dated 26th September, 2025 that no substantial question is involved in these two second appeals, hence, this Court dismisses the aforesaid two second appeals on payment of cost of Rs. 20,000/- which shall be paid by the appellant to the respondents within a period of three weeks from today. In case if the said amount is not paid to the respondents, the same shall be recovered as arrears of land revenue by the District Magistrate concerned and the Executing Court shall forward a copy of this order to the District Magistrate for its compliance. The embargo placed on the Executing Court is also removed. The Executing Court shall ensure that the decree passed by the court concerned is duly executed in accordance with law. 5 SAPL No. 160 of 2025

7. With the aforesaid observations, both the appeals are dismissed. October 6, 2025 Asheesh (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench