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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Sumer - Appellant
Versus
Bator - Respondent
Second Appeal No. 1289 of 1988
Decided on : 24-07-2020
Zamindari Abolition Rules – Rules 110, 115 – U.P. Z.A. & L.R. Act – Sections 9, 128, 157 – Code of Civil Procedure, 1908 – Section 100 – Suit Property Issue – Title – Whether the decree passed by the lower appellate court suffers from an error of law because it has upset the findings recorded by the Trial Court about execution of lease in accordance with the provisions of the U.P. ZA. & L.R. Act – By this Appeal, the defendants of Original Suit no.36 of 1976, seek reversal of the judgment and decree passed by Mr. H.L. Kureel, the then Additional District Judge, Ghazipur, in Civil Appeal, allowing the Appeal and decreeing the Suit, that was dismissed by the Trial Court vide judgment and decree –
Finding of the Court:
what is not in dispute is that the defendants do not hold title or possession. So far as the plaintiffs are concerned, they have been held to be in possession by the Lower Appellate Court. – Even if their possession is traceable to a defective title based on the patta owing to its non-approval by the Sub-Divisional Officer as claimed, though this Court does not say so that it is without approval, their possession is one held under colour of title on the basis of a Gaon Sabha patta. – They are not rank trespassers. – Even if they were rank trespassers but in settled possession, the defendants who have neither title or possession, have no business to go about interfering with the plaintiffs’ possession over the suit property by asking them not to construct a boundary wall around it or raise any constructions. – Lower Appellate Court, thus, on the ground of possession traceable to the patta found for the plaintiffs, if not on the basis of title, has rightly decreed the Suit against the defendants. – The substantial question of law formulated at the time of admission of this Appeal is really not involved. – Defendants have not, during the course of hearing, brought to the notice of the Court any other substantial question of law requiring formulation. – Court too has not noticed any other substantial question of law that may be required to be formulated and the parties heard on it. – After hearing the plaintiffs, who are respondents to this Appeal, at length, this Court finds that this Appeal deserves to be determined under sub-Section (5) of Section 100 CPC for the reasons hereinbefore elaborately indicated. – Appeal has remained pending for the past 32 years and during this time, the plaintiffs have suffered a stay of operation of the decree passed in their favour by the Lower Appellate Court. – During this long period of time, the younger of the two plaintiffs has passed away. – Now, the plaintiffs have shown that no substantial question of law is really involved. – They would, therefore, be entitled to their costs from the defendants. –
Result: Appeal Dismissed
JUDGMENT :
1. This is a defendants’ Second Appeal arising from a Suit for permanent prohibitory injunction and, alternatively, for possession.
2. By this Appeal, the defendants of Original Suit no.36 of 1976, seek reversal of the judgment and decree passed by Mr. H.L. Kureel, the then Additional District Judge, Ghazipur, dated 18.02.1988 in Civil Appeal no.134 of 1984, allowing the Appeal and decreeing the Suit, that was dismissed by the Trial Court vide judgment and decree dated 02.05.1984.
Parties to the lis
3. The Suit was instituted by Bator son of Buddhiram and Shiv Chand son of Bator, arrayed as plaintiffs nos.1 and 2 in that order. The defendants to the Suit were seven in number, to wit, Sumer, Muneshwar, Uddhav, Munni, Jhuri, Radhey and Tufani, all sons of Sahdev. The said defendants were arrayed as defendants nos.1 to 7 in that order. This Appeal was lodged by all the defendants, who at the time of presentation of the Appeal, had grown to a figure of nine. This increase was on account of the death of defendant no.5 to the Suit, Jhuri, who was survived by his wife, Smt. Behafi and two sons, Mansha and Ramesh. Ramesh at the time of presentation of this Appeal was a minor and was, therefore, represented through his mother, Smt. Behafi, acting as his next friend. Pending Appeal, of the nine original defendants-appellants, four died. They are: Sumer, Muneshwar, Uddhav and Munni. Each of these deceased defendants-appellants are now represented on record by their heirs and legal representatives.
4. Amongst the plaintiffs-respondents, Shiv Chand son of Bator died pending Appeal. His heirs too have been brought on record. The nine defendants-appellants who lodged this Appeal, including the heirs and legal representatives of the deceased defendants-appellants, shall hereinafter be referred to as ‘the defendants’, except where the reference is to a particular defendant. The two plaintiffs-respondents to this Appeal, originally impleaded, including the heirs and legal representatives of the plaintiff-respondent no.2, Shiv Chand, shall be hereinafter referred to as ‘the plaintiffs’, except where the reference is to a particular plaintiff.
The suit property
5. The suit property is non-agricultural land, bearing plot no.114, admeasuring a total of 2 biswas, 12 dhurs, situate at Village Palia, Pargana Pachochar, District Ghazipur. It is denoted in the plaint, giving rise to the suit, by letters v c l n ; j v
The substantial question of law involved
6. This Appeal was admitted to hearing on 19.05.1988 on the following substantial question of law:
The plaintiffs’ case
7. The plaintiffs’ case is that they are father and son, and natives of Village Palia, Pargana Pachochar, District Ghazipur. The land, over which the plaintiffs’ old house is located, has been assigned a new no.183 and abutting it, is plot no.184. Prior to the notification of consolidation operations, the locale of new plot no.183 had a number of houses standing there. The last mentioned plot has a large number of dwelling houses, located thereon. The adjacent plot no.184 is parti. Prior to the notification of consolidation operations, the site of plot no.184 has always been banjar (uncultivable land). It has now been assigned plot no.184. The ingress and egress to the plaintiffs’ house is oriented to the east. Lying in front of their entrance is a sehan carrying dimensions, expressed in indigenous units as 1½ lattha wide and 3 lattha long. This sehan is utilized by the plaintiffs, where they sit and move about and tether their cattle with great inconvenience - a pair of oxen and two buffaloes. Abutting the land where the plaintiffs’ house is situate, on its west and south, is plot no.184. The aforesaid land being parti, is Gaon Sabha’s property. Furt
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