Back
2019 Supreme(All) 2725
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Rajan Roy, J.
Nand Lal and Ors. - Appellants
Vs.
Ram Autar - Respondent
Second Appeal No. 315 of 2011 and M.S. No. 5581 of 2004
Decided On : 30-05-2019
For the Appellant : Ravi Nath Tilhari, G.S. Nigam, Akash Dikshit, Pramod Kumar Khare and S.N. Pandey
For the Respondents: Abhisht Sharan, Akash Dikshit, Govind Saran Nigam, Pramod Kumar Khare, C.S.C., A.K. Verma, Awadhesh Kumar, Durgesh Kumar Verma and Vijay Bahadur Verma
The main legal point established in the judgment is that in a suit for injunction, the plaintiff must establish actual possession of the disputed property, especially if the plaintiff's title is disputed or under a cloud. Additionally, the judgment underscores the importance of considering evidence of possession and ownership in land dispute cases.
Headnote:
Possession - Land Dispute - Act 1901, Indian Evidence Act - Section 145, Cr. P.C. - Section 34, U.P. Land Revenue Act - [KEYWORD] - [SUBJECT] - [Act 1901, Indian Evidence Act, Section 145, Cr. P.C., Section 34, U.P. Land Revenue Act]
Fact of the Case:
The case involved a dispute over land possession between the plaintiff and the defendant. The plaintiff filed a suit for permanent injunction against the defendant, claiming ownership and possession of the disputed land. The Trial Court found in favor of the plaintiff, which was affirmed by the First Appellate Court. The defendant filed a Second Appeal, challenging the lower court's decision.
Finding of the Court:
The Court found that the lower courts erred in not considering the evidence of possession and ownership presented by the defendant. It held that the plaintiff failed to establish actual possession of the disputed land at the time of filing the suit. The Court also noted that the plaintiff did not seek a declaration of title and possession, which was necessary given the disputed ownership and possession. The Court set aside the judgments of the lower courts and remanded the case back to the Trial Court for reconsideration.
Issues: The main issues were whether the plaintiff was in actual possession of the disputed land at the time of filing the suit, the admissibility of evidence related to possession and ownership, and the necessity of seeking a declaration of title and possession in a suit for injunction.
Ratio Decidendi: The Court emphasized that in a suit for injunction, the plaintiff must establish actual possession of the disputed property. If the plaintiff's title is disputed or under a cloud, a suit for declaration of title and possession may be necessary. The Court also highlighted the importance of considering evidence of possession and ownership in such cases.
Final Decision: The Court allowed the Second Appeal, set aside the judgments of the lower courts, and remanded the case back to the Trial Court for reconsideration. The Court also disposed of a related writ petition, restoring it for further consideration by the Board of Revenue.
JUDGMENT :
Rajan Roy, J.
1. Both the aforesaid matters are between the same parties involving a dispute pertaining to the same land, therefore, they were clubbed and have been heard together. It is the second appeal which is being decided first.
Second Appeal No. 315 of 2011:
2. The second appeal has been filed by the legal heirs of the defendant, against the judgment and decree dated 29.5.2008 passed by the Addl. Civil Judge (Jr. Div.), Unnao, in Regular Suit No. 73 of 2003, Ram Autar v. Kanchan, and the judgment and decree of the First Appellate Court dated 26.7.2011 passed by the Additional District Judge (Court No. 1), Unnao.
3. The respondent-plaintiff filed a suit for permanent injunction against Kanchan, the defendant and predecessor-in-interest of the appellants herein. The suit was filed on 26.3.2003. The plaint was accompanied by a certified copy of a "Khasra" dated 17.3.2003 of 1410F. pertaining to Gata Nos. 393 and 394 measuring 0.130 Hect. And 1.320 Hect., the land in dispute as proof of the plaintiff being in possession.
4. A written statement was filed by the defendant denying the possession of the plaintiff and annexing therewith a "Dakhalnama' dated 2.2.2003 by which it was said that on conclusion of proceedings under section 145, Cr. P.C. in which a receiver had been appointed on the land in dispute by the Magistrate, the officials handed back possession to the defendant. The "Dakhalnama' bore the signature of the plaintiff Ram Autar. The following issues were framed by the Trial Court:
"1. Whether the plaintiff was the owner in possession of the disputed land bearing Gata No. 393 (0.130 Hec.) and Gata No. 394 (0.320 Hec.) as also the trees existing thereon?
2. Whether the suit had been valued on the lower side and the stamp paid was inadequate?
3. Whether the plaintiff is entitled to any other relief?"
5. The Trial Court on consideration of the facts and evidence on record found that the Will on the basis of which the defendant claimed title could not be proved. The Trial Court also considered the fact that during mutation proceedings the Will had been found to be proved and the marginal witnesses had testified and proved the execution of the Will, but, during the trial before the Civil Court it found that they testified to the contrary. One of the witnesses became hostile and the other deposed in favour of the plaintiff, therefore, in view of section 32 of the Indian Evidence Act the Trial Court was of the view that their evidence in mutation proceedings under section 34 of the Act, 1901 (hereinafter referred as 'Act, 1901') was inadmissible in the trial before it.
6. The documentary evidence adduced by the defendant relating to the proceedings under section 145, Cr. P.C., to show his possession, was not accepted on the ground that in proceedings under section 145, Cr. P.C. possession of the two preceding months alone is seen and the said proceedings relating to possession are based on facts i.e., de facto possession, and not in law i.e., de jure possession as had been held in a report Smt. Jarawati Devi and others v. State of U.P. and others 2007 (6) ALJ NOC 1083 (Alld). If possession is given during proceedings under sections 145 and 146, Cr. P.C., then it does not prove the fact that the defendant is owner in possession of the land in dispute. The Will on the basis of which title was being claimed could not be proved. The Trial Court also opined that the orders passed during miscellaneous proceedings under section 145, Cr. P.C. are not binding on the Civil Court. It found that the land belonged to Mani Ram and after his death the plaintiff, his son, became its owner in possession and his name was also recorded in the revenue records. Accordingly, it came to the conclusion that it is the plaintiff who was the owner in possession of the land in dispute. Issue No. 1 was decided accordingly and the suit was decreed.
7. Being aggrieved the appellant filed a first appeal. The First Appellate Court framed the following thr
