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2021 Supreme(All) 1273
IN THE HIGH COURT OF ALLAHABAD
SYED AFTAB HUSAIN RIZVI, J.
Kanpur Development Authority through its Vice-Chairman – Appellant
Versus
Gaffar and Another – Respondents
Second Appeal No. 862 of 2001
Decided On : 26-11-2021
Advocate Appeared:
For the Appellants : Man Mohan Das Agrawal, Deepak Jaiswal, Shashi Shekhar Mishra.
For the Respondents: Eeppak Jaiswal, Azad Khan, B.N. Rai, L.M. Singh, Manas Bhargava, Manoj, Manoj Srivastava, P.K. Jain, Pankaj Agarwal, Sufia Saba.
Point of Law : Provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record.
Headnote:
Code of civil procedure, 1908 - Order 41 Rule 31 - Land Acquisition Act, 1894 - section 4 - Plaintiff is in peaceful possession upon land and has got his Pakka house therein which is in-existence for last more than forty years besides well, tomb and garden - Defendant being a Cooperative Housing Society is not at all owner and landlord of disputed land - Defendant by executing a fictitious sale deed is now approaching field owned and possessed by plaintiff to deliver possession of land of plaintiff forcibly and illegally and for that purpose defendant is making survey of land owned and possessed by plaintiff - Whether first appellate court misinterpreted and misconstrued evidence led by parties and has relied on any inadmissible evidence and has ignored any admissible evidence.
Findings of the court :
From evidence on record it is proved that respondent-plaintiff is recorded tenure holder in possession of disputed property- Appellant/defendant has failed to prove that disputed land was acquired by him - Appellant-defendant has further admitted possession of respondent - plaintiff on disputed property - Trial court has failed to properly appreciate evidence on record and judgment and decree passed by trial court was erroneous - Findings recorded by appellate court on aforesaid issues are according to evidence and just and proper - Appellate court has neither misinterpreted nor misconstrued evidence led by parties and has also not relied on any inadmissible evidence and has not ignored any admissible evidence - There is no perversity or illegality in findings recorded by appellate court - Hence, both question of law framed are decided against appellant.
Result : Second appeal dismissed.
JUDGMENT :
SYED AFTAB HUSAIN RIZVI, J.
1. This second appeal is directed against the judgment and decree dated 9.1.2001 passed by 17th Additional District Judge, Kanpur in Civil Appeal No. 376 of 1998 Gaffar vs. Kanpur Development Authority and Another. By the impugned judgment the first appellate court has allowed the appeal and set-aside the judgment and decree of trial court in O.S. No. 1552 of 1989 Gaffar vs. Kanpur Development Authority and has decreed the original suit and restrained the respondents (defendants) from interfering in the peaceful possession of the appellant-plaintiff on the disputed property.
2. The brief facts are that respondent filed Original Suit No. 1552 of 1989 Gaffar vs. Chairman, Kanpur Development Authority and Another for permanent injunction. In the plaint it was alleged that plaintiff is absolute owner and landlord of field no. 797 ad-measuring 6 bigha 13 biswa situated in village Chandari, Kanpur Nagar, in pursuance of a will deed duly registered and the name of the plaintiff has been duly mutated in the revenue records of Khatauni for 1391 Fasli to 1396 Fasli as per order of Tehsildar dated 14.9.1987. The plaintiff is in peaceful possession upon the said land and has got his Pakka house therein which is in-existence for last more than forty years besides well, tomb and garden. The defendant no. 2 being a Cooperative Housing Society is not at all the owner and landlord of the disputed land. The defendant no. 2 by executing a fictitious sale deed is now approaching the field owned and possessed by the plaintiff to deliver the possession of the land of the plaintiff forcibly and illegally and for that purpose defendant no. 2 is making survey of the land owned and possessed by the plaintiff. Defendant no. 1 through his employees is also making survey. The defendants have no right, title or interest upon the land owned and possessed by the plaintiff and plaintiff is in lawful possession since long back and prior to that the predecessors in interest of the plaintiff were in peaceful possession without interruption.
The defendant no. 1 filed written statements in which it denied the plaint allegations and further pleaded that Arazi No. 797 ad-measuring 17 bigha and 9 biswa situated in Chandari area was acquired vide award no. 38 of 25-3-1963 and possession of the acquired land was obtained on 20.8.1963. The defendant has a plan/scheme over the disputed land for Basic Primary School. The plaintiff has trespassed over the disputed land and constructed a Pakka house and a kitchen with boundary wall without any authority/permission, right, title or interest. The said construction is without any approved map and no duly sanctioned plan has been obtained by the plaintiff for construction from the map section. The construction erected on the plot can be demolished as unauthorized construction and is liable to be demolished under the Provisions of Nagar Mahapalika Act, 1959. The acquired land has already been developed and an impediment is caused due to unauthorized construction. The trial court framed following 8 issues:
1. Whether suit is under valued and court fees paid is insufficient?
2. Whether the plaintiff is owner in possession of Khasra No. 797 area 6 bigha 13 biswa village Chandari, Tehsil and District Kanpur and in possession and his forty years old construction are situated on it?
3. Whether defendant no. 2 has any right to transfer the disputed property?
4. Whether the disputed property has been validly acquired by the defendant no. 1? If yes, then how in which manner.
5. Whether any valid notice under section 4 of Land Acquisition Act has been issued under Land Acquisition Act? If yes, then its effect.
6. Whether Nagar Mahapalika has given any notice in relation to construction? If yes, then its effect.
7. Whether construction of plaintiff is illegal?
8. Whether plaintiff is entitled to any relief?
After taking evidence the learned trial court decided issue nos. 2, 3 and 4 against the plaintiff and on tha
