Back
2014 Supreme(All) 2810
ALLAHABAD HIGH COURT
Anil Kumar, J.
Mahmood Khan and Others - Appellant
Versus
Second Appeal No. - 940 of 1978 - Respondent
Second Appeal No. - 940 of 1978
Decided On : 09-05-2014
For the Appellant :- H.S.Sahai,U.S.Sahai
For the Respondent:- B.K.Srivastava
The court emphasized the limitations of interference in second appeals, the principles of substantial questions of law, and the interpretation of section 100 C.P.C.
Headnote:
Land Dispute - U.P. Act No.1 of 1951 - Section 9 - 3545/0.10 - The court discussed the ownership of the disputed land, the effect of alleged constructions, and the validity of the transfer of abadi land under U.P. Act No.1 of 1951. The court also considered the findings of fact, the interpretation of section 100 C.P.C., and the principles of substantial questions of law.
Fact of the Case:
The plaintiffs filed a suit for demolition of structures and possession over a disputed land. The trial court decreed the suit for possession, which was later remanded back for additional issues to be framed. The trial court again decreed the suit, leading to the present second appeal.
Finding of the Court:
The court found that the disputed land originally belonged to Baleshwar and that the defendants failed to prove their ownership under U.P.Z.A.&L.R. Act. The court rejected the appellants' arguments regarding the jurisdiction of the civil court and the interpretation of section 100 C.P.C.
Issues: Ownership of disputed land, effect of alleged constructions, validity of land transfer under U.P. Act No.1 of 1951, jurisdiction of civil court, interpretation of section 100 C.P.C.
Ratio Decidendi: The court upheld the findings of fact recorded by the lower courts and emphasized that re-appraisal of evidence is not permissible in a second appeal. The court also highlighted the principles of substantial questions of law and the limitations of interference under section 100 C.P.C.
Final Decision: The second appeal lacked merit and was dismissed.
Anil Kumar,J.
Heard Shri U. S. Sahai, learned counsel for the appellants and perused the record.
2. Facts in brief of the present case are that the plaintiffs-respondents filed a suit for demolition of structures and also for possession over the land in dispute recorded as abadi plot no.3545 in which there is a dilapidated house over the land on the ground that the same has been purchased from Baleshwar who is tenure-holder, by way of sale deed dated 14.10.1965.
3. In the plaint, the plaintiffs had pleaded that the house has fallen down and the defendants have dispossessed the plaintiffs and raised structures and hence the suit for demolition and possession. Accordingly, the suit was registered having Regular Suit No.462 of 1996. Thereafter, the trial court by judgment and order dated 24.04.1971 has decreed the suit for possession in respect of the land in dispute. In this regard, both the courts below have given a concurrent finding which is based on the material on record.
4. The suit was resisted by the defendants-appellants on the ground that the land is suit is Sahan land of the defendants-appellants having their Ghari, Charni, pegs and Khalian and other agricultural structures/equipment etc. on it.
5. Aggrieved by the said observations made in the trial ocurt, plaintiffs filed an appeal bearing Civil Appeal No.73 of 1971 "Mahmood Khan vs. Barkayi & Ors.", allowed by judgment and decree dated 04.05.1972 and the matter was remanded back to the trial court with a direction that it shall register the suit at its original number. The trial court was further directed to frame additional issues in the light of observations made in the body of appellate judgment after giving opportunity to the parties concerned to issue commission for determination as to whether the land in dispute falls part of plot no.3545 or not and shall decide the case in accordance with law.
6. In view of the factual background, the matter again built up before the trial court. The trial court in order to decide the controversy involved in the present case has framed the following issues : -
"Whether the land in suit belongs to the plaintiffs ?
Whether the alleged construction and Khutas, as alleged in the plaint are new or old ? In either case its effect ?
Whether there existed any house belonging to one Baleshwar over the land in suit ?
Whether the suit is within time ?"
7. After considering the material on record (oral and documentary evidence) as well as commission report, the trial court by judgment and decree dated 29.08.1977 had decreed the suit of the plaintiffs challenged by filing an appeal bearing Civil Appeal No.118 of 77 "Sri Barkayee & 3 Ors. vs. Sri Mahmood Khan & 3 Ors.", dismissed by judgment and decree dated 8.8.1978.
8. In view of the above said facts, the present second appeal has been filed by the defendants-appellants (During the pendency of the present appeal, appellant nos.1, 2 and 4 as well as respondent no.1 have died and substituted by their legal representatives).
9. Shri U. S. Sahai, learned counsel for the appellants has pressed the second appeal on the following questions of law : -
"Whether the land of abadi after the date of vesting having been vested in the State can be transferred by the Ex-zamindar and the transferre can have any title or right over the land so transferred ?
Whether a transfer of abadi land after the enforcement of U.P. Act No,1 of 1951 of abadi land is void and can create any right on the transferre ?
`Whether assuming that the plaintiff taking a transfer of land from ex-zamindar of land appurtenant to the defendant's appellant's house and the land in suit being sahan darwaza land of the defendant-appellant the plaintiff can have any right over such a land having been vested under section 9 of U.P. Act No.1 of 1951 and settled with the defendant-appellant. ?
Whether non-framing of a vital issue with respect to the fact that whether Baleshwar had transferable rights over the land in dispute basic
