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IN THE HIGH COURT OF ALLAHABAD
SIDDHARTH, J.
Vishwanath Since Deceased and Others - Appellants
Versus
Sarju and Others - Respondents
Second Appeal No. 983 of 2005
Decided On : 21-09-2021
Sahan - Property Dispute - U.P. Consolidation of Holdings Act - Section 49
Fact of the Case:
Plaintiffs sought demolition and possession of the disputed land, claiming it as their Sahan. Trial court found in favor of plaintiffs, but the first appellate court allowed the appeal. Second appeal was admitted on the substantial question of law regarding the framing of the point of determination by the lower appellate court.
Finding of the Court:
The court found that the lower appellate court did not err in framing the points of determination and that the defendants were estopped from raising the plea of bar of Section 49 of U.P. Consolidation of Holdings Act due to the principle of res judicata.
Issues: The issues included the right to institute the suit, ownership of the disputed land, non-joinder of necessary parties, defect in the suit regarding non-disclosure of correct and complete details of the suit property, and the bar of Section 49 of U.P. Consolidation of Holdings Act.
Ratio Decidendi: The court held that the defendants were estopped from raising the plea of bar of Section 49 of U.P. Consolidation of Holdings Act due to the principle of res judicata.
Final Decision: The appeal was dismissed with costs.
JUDGMENT :
1. Heard Sri Alok Kumar Yadav, learned counsel for the appellants and Sri Anshu Chaudhary, learned counsel for the respondents. Lower court record has also been persued.
2. This second appeal has been preferred against the judgement and decree dated 28.9.2005 passed by the Additional District Judge, Court No. 17, Allahabad in Civil Appeal No. 368 of 1986, confirming the judgement and decree dated 23.7.1986 passed by the First Additional Munsif, Allahabad in Original Suit No. 655 of 1974.
3. The plaintiffs instituted the Original Suit No. 655 of 1974 against the defendant no.1 praying for a decree of demolition and possession over the suit property.
4. The plaintiffs’ case was that land in dispute is his Sahan for the last 60 years and the defendant no.1 has no concern with the same. In June 1974, he forcibly constructed a wall and made other illegal constructions over the same during the pendency of the suit. The property in dispute is situated over the plot no. 1170 (New no. 1079) in Mauja Mugrao, Pargana Kewal, Tahsil Handia, district Allahabad. The defendant nos. 2 and 3 are real brothers of the plaintiffs and since they were not present at the time of institution of suit, they were impleaded as defendants in the suit.
5. The defendant no.1 filed his written statement rebutting the plaint averments and claimed his possession over the suit property for the last more than 100 years. He also claimed that he has purchased the same on 20.1.1981, vide registered sale deed from Shri Prakash Bahadur. He denied any possession of the plaintiff over the land in dispute. It was stated that defendant no.1 has constructed house on the eastern and northern side of house of Shiv Bahadur. Trees standing on the plot have been purchased by him from the earlier owners. He also claimed open adverse possession over the property in dispute.
6. On the basis of the pleadings of the parties, the trial court framed the following issues:-
2. Whether the plaintiff is owner of the disputed land?
3. Whether the suit is bad for non-joinder of necessary parties on account of non-impleadment of Shri Prakash Bahadur, etc.?
4. Whether there is defect in the suit regarding non disclosure of correct and complete details of the suit property?
5. Whether the suit is barred by section 49 of Consolidation of Holdings Act?
6. Whether the illegal and unnecessary construction made by the defendant on land ‘Aa,Ba,Sa,Da’ is liable to be demolished?
7. To what relief is the plaintiff entitled to?
8. Whether the suit is under valued and court fees paid is insufficient?
9. Whether the defendants have made illegal constructions on the disputed land after institution of suit, which is liable to be demolished?
7. Issue nos. 1,2,6 and 9 were decided together by the trial court. It found that the plaintiff, and defendant nos. 2 and 3 are owners of the property in dispute and defendant no.1 has made illegal constructions over the same, which is liable to be removed and plaintiff has full right to institute the suit.
8. Regarding issue no.3, the trial court found that suit is not bad for non-joinder of necessary the parties.
9. Issue no.4 was decided holding that full and complete details of the suit property have been furnished by the plaintiff. 10 Issue no. 5 was decided holding that the land in dispute appears to be 'Abadi’ and, therefore, the suit is not barred by section 49 of U.P. Consolidation of Holdings Act.
11. Issue no. 8 regarding under valuation of the suit and court fees paid was decided in favour of the plaintiff.
12. Issue no. 7 was decided holding that plaintiff has successfully proved his case and, therefore, his suit deserves to be decreed.
13. Accordingly the suit was decreed by the judgement and decree dated 23.7.1986.
14. Aggrieved by the judgement and decree dated 23.7.1986 of the trial court, the defendants/appellants preferred a Civil Appeal No. 268 of 1986, which was allowed by the judgement and decree dated
The principle of res judicata applies at every stage of proceedings, and once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of the proceeding.
Orders and titles obtained through fraud are nullities; rightful ownership should not be barred by procedural delays attributable to such fraud.
The suit was held to be barred by Section 49 of the U.P.C.H. Act as the disputed land was recorded as Navin Parti during consolidation operation and the plaintiff did not take any steps to correct th....
Preliminary issues involving mixed questions of law and fact must be decided alongside all issues, not in isolation, as per established legal principles.
The suit for cancellation of a sale-deed was barred under Section 49 of the U.P. Consolidation of Holdings Act, as plaintiffs failed to prove the existence of a Joint Hindu Family or that the propert....
The jurisdiction of civil courts is barred under Section 49 of the U.P.C.H. Act for matters related to land subject to consolidation, unless fraud is proven, which was not established in this case.
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