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[2011(8) ADJ 684 (DB)]
ALLAHABAD HIGH COURT
BEFORE : YATINDRA SINGH AND DINESH GUPTA, JJ.
STATE OF U.P. .....Appellant
Versus
THAKUR SRI RADHA RAMANJI MAHARAJ .....Respondents
(First Appeal No. 962 of 2004, decided on 20th September, 2011)
(B) Evidence Act, 1872—Section 90—Presumtion contained therein—Applicability—Deed executed in 1858 and lease deed, more than thirty years old—Produced by plaintiff—Presumption of its genuineness applies, as it come from proper custody, i.e., plaintiff—None of these documents were alleged to be forged or fabricated—As such, these documents are admissible in evidence, even without their formal proof. [Paras 19, 24 and 25]
(C) Evidence Act, 1872—Section 65—Secondary evidence—Admissibility of—Registered trust deed of 1866—Original deed lost—Copy of that deed, originally filed in First Appeal in 1925, being part of its paper book—There was no dispute regarding that First Appeal was filed and decided and copy of trust deed, filed in it—Certified copy of that trust deed obtained from record room—Admissible in evidence. [Paras 26 to 31]
(D) Evidence Act, 1872—Section 65—Secondary evidence—Admissibility of—Deed of 1881, certified copies of documents filed in First Appeal in 1925, original House tax and Water tax receipts, letters written by officials—Not challenged by other party to be forged or fabricated—Admissible in evidence. [Paras 32 to 36]
(E) Practice and Procedure—Filing of documents by one party in suit—If exibited—No further order by Court necessary—Letter written by one official to another official in discharge of his duty and photostat copies of Khasra and khatauni—Authenticity of these documents not challenged by other party—Admissible and can be read in evidence. [Paras 38 to 40]
(F) Specific Relief Act, 1963—Section 38—Suit—Permanent injunction—Filed by plaintiff on averments that land is owned by them and house was constructed over it by them—Evidence filed in support of these averments—Supporting plaintiff’s stand—As such, he is entitled to permanent injunction—High Court while holding this view, considered all the documents filed by both parties and examined several other factors on basis of arguments of parties. [Paras 61, 64, 69, 74, 83, 84 and 87]
(G) High Court’s suggestion—Conduct of suit—Not properly done by Court below—Proper conduct needs knowledge not of only good law, but also knowledge regarding appreciation of evidence and conduct of trial—This knowledge is given by Judicial Training Institute at Lucknow—Giving emphasis on this aspect, High Court left this topic at this stage only.
Hon’ble Yatindra Singh, J.—This defendant’s first appeal revolves around the nature of the rights conferred upon the plaintiff’s predecessor-in-interest by the letter written by the Collector in 1858 (the 1858 Deed).
THE FACTS
2. Thakur Sri Radha Ramanji Maharaj (the Plaintiff) is a deity. It has filed original suit No. 185 of 1992 for permanent injunction restraining the State of UP through Collector Mathura (the Defendant) from interfering with its possession.
3. The main allegations in the plaint are as follows:
(i) Shah Kundan Lal and Shah Fundan Lal (the original beneficiaries) were given freehold rights over the land situate in the civil lines, Mathura by the British Government (the 1858 Deed). They had constructed a house over the land and are owners of the same.
(ii) The original beneficiaries created a trust dedicating considerable property by the deed dated 7.9.1866 (the 1866 Deed) and later on Shah Fundan Lal alongwith the son of Shah Kundan Lal executed a supplementary deed on 19.7.1881 (the 1881 Deed) dedicating the property given to them in free hold by the British government (by the 1858 Deed) alongwith other properties to the Plaintiff.
(iii) The total area of the land given to them by the (1858 Deed) was 6.67 acres. Out of this area, (the northern portion) 3.69 acres was leased out to one Sri Laxman Das Bhargava (Laxman Das), who was a high official in the government. He illegally got the entire land recorded as the nazul property.
(iv) The remaining (southern) area of 2.98 acres of land continued with the Plaintiff. (It is subject matter of dispute in this case).
? Over the property in dispute, a kothi was standing. This kothi alongwith the land (2.98 acres) was leased out to the Planning Department of the Defendant.
? Later on, original suit (OS) No. 30 of 1969 for recovery of rent and ejectment was filed against the tenant. The suit was decreed for rent, but was dismissed for ejectment on 10.8.1971.
? The civil appeal (CA) 195 of 1971, against the aforesaid judgment, was allowed on 31.1.1975 and the suit was decreed for ejectment also.
? The plaintiff obtained possession of the land in dispute in pursuance of the decree and is in a lawful possession over the same;
(i) The old building standing on the plot has fallen down however, the malwa is still there. The Defendant is illegally trying to make construction over the same.
4. In the plaint, it was not mentioned that:
The land given to Laxman Das was the northern portion of the land of the 1858 Deed, or
The property in dispute in the suit was the remaining southern portion.
However, it is clear from the boundaries of these properties described in the plaint in paragraph 1, 4, and at the end of the plaint.
5. It is on the basis of the aforesaid allegations that the relief of the permanent injunction was asked for.
6. The Defendant filed the written statement. Its case is as follows:
? The British Government had not given any land to the original beneficiaries as the free hold. They are not owners of the property in dispute. Neither any trust deed was executed in respect of the property in dispute nor they were entitled to execute it;
? Shah Gaur Saran had let out some property to Laxman Das. However, Laxman Das got the lease deed executed from the Defendant, when he came to know the correct facts that the property was nazul property and was wrongly let out by Shah Gaur Saran;
? The 1858 Deed said to be executed by the Collector Mathura does not give any details of the property and is not in respect of the property in dispute;
? Even if the 1858 Deed is taken to be in respect of property in dispute then, it is neither a lease, nor grants freehold rights. At the most, it could be a permission to construct a building and is akin to a licence;
? The building has fallen down and the rights of the Plaintiff have come to an end. There was no necessity of taking formal possession over the property in dispute. The permission has automatically lapsed and the property is released;
? T
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