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IN THE HIGH COURT OF ALLAHABAD
Saurabh Lavania, J.
Bhagauti Singh @ Chedi Singh S/o Madhuban Singh – Appellant
Versus
Mata Prasad Singh S/o Bhaggu Singh – Respondent
Second Appeal No. -114 of 2010
Decided On : 15-09-2022
C.P.C. - Second Appeal - Section 100 - Summary Judgment
Fact of the Case:
The plaintiff filed a suit for permanent injunction, claiming possession over the suit property. The trial court found against the plaintiff, holding that they failed to prove possession and ownership. The first appellate court also found against the plaintiff, concluding that they failed to prove their rights, title, and possession over the property. The High Court dismissed the appeal at the admission stage, finding no substantial question of law involved.
Finding of the Court:
The courts found that the plaintiff failed to prove possession and ownership over the property in question, and no substantial question of law was involved in the appeal.
Issues: The issues revolved around the plaintiff's claim of possession and ownership over the suit property, and the courts' findings on the same.
Ratio Decidendi: The courts held that a second appeal should not interfere with findings of fact unless they are based on no evidence or are perverse. The courts also emphasized that a suit for permanent injunction simplicitor is maintainable when there exists a cloud over the title/ownership of the property in question.
Final Decision: The appeal was dismissed at the admission stage, with the High Court finding no substantial question of law involved.
JUDGMENT :
1. On 07.04.2020, the following order was passed by this Court:-
The steps for service shall be taken by the learned counsel for the appellant within a week from today.
List for admission immediately after service.
Till the next date of listing, status quo as exists today with respect to property in question shall be maintained by the parties."
2. From the aforesaid order, it is evident that without admitting the appeal, an interim order was passed in favour of the appellant. Thus, this court proceeded to hear the case for admission.
3. Heard Sri N.K. Dwivedi, learned counsel for the appellant.
4. This appeal relates to the year 2010 which was present in the Registry of this Court on 25.04.2010.
5. This second appeal has been filed by the appellant-plaintiff under section 100 of C.P.C. against the judgment and decree dated 25.09.2008 passed by IVth Civil Judge (J.D.), Gonda in Regular Suit No.125 of 1991, (Bhaguti Singh Vs. Mata Prasad and others) thereby dismissing the suit for permanent injunction and also against the judgment dated 11.12.2009 passed by IInd Additional District Judge, Gonda in Civil Appeal No.136 of 2008 (Bhagauti Singh Vs. Mata Prasad and others) thereby confirming the judgment of trial court and dismissing the first appeal of plaintiff-appellant.
6. It would be appropriate to indicate here that the suit was filed seeking relief of perpetual/permanent injunction and the relief for declaration was not sought.
7. For the purpose of admission of present second appeal, learned counsel for the appellant submitted that both the courts below while passing the judgments under appeal not considered the relevant evidence available on record in the light of pleadings of the parties to the proceedings. He also stated that both the courts below have wrongly considered the report of the Advocate Commissioner. His further submission is that the trial court as well as the appellate court while dismissing the regular suit as well as civil appeal have wrongly placed reliance on the judgments of revenue court passed under section 229 of the U.P.Z.A.& L.R. Act ,1950. Thus, the present appeal is liable to be entertained.
8. The factual matrix of the case, in brief, is that the plaintiff-appellant filed a suit for permanent injunction, registered as Regular Suit No.125 of 1991 before the Civil Judge (J.D.) Gonda. Subsequently, after transfer the same was decided by IV Civil Judge (J.D.) Gonda. The case as set up by the plaintiff-appellant in the plaint is based upon the possession over the suit property. As per the averments made in the plaint the property in suit i.e. Abadi Land upon a compromise in a suit filed in the year 1965 by one Madhuban Singh(father of plaintiff) came into possession of one Ganpati Dei and since after death of Ganpati Dei , the plaintiff is in possession of the property in suit. Period of possession over the property in suit has been indicated as 30 years. Further, as per plaint case the defendants tried to interfere in the peaceful possession of the plaintiff-appellant, as such he approached the concerned court seeking relief of permanent injunction. After notice, defendants appeared before the court below and filed written statement stating therein that they (defendants) are the owner in possession of the property in suit by virtue of the sale-deed executed by one Udai Raj Singh. From the facts on record, it is evident that this sale-deed was executed by Udai Raj Singh in favour of one Mata Pasad Singh-defendant no.1/respondent no.1 in the instant appeal. As per the written statement, the sale-deed was executed on 26.07.1988. The case of the defendants as appears from the judgment passed in the suit and civil appeal is to the effect that the title of the suit property is with defendant no.1/respondent no.1 and defendant nos. 1 and 2 are in possession of the suit property for the last 40 years as such without seeking relief of declaration in
The suit for injunction is not maintainable when the title of the plaintiff is under a cloud, requiring a declaration of title for proper adjudication.
Where possession of plaintiff-respondent is not satisfactorily proved, no gainful purpose would be served in remanding the mater for re-consideration only on account of procedural lapse committed by ....
In disputes involving conflicting title claims, a suit for permanent injunction is not maintainable without a concurrent declaration of title, reaffirmed by the necessity of evidencing lawful possess....
The possession is a pure question of fact, and the findings of fact recorded by the lower courts cannot be interfered with unless they are based on no evidence or are perverse.
A suit for injunction simpliciter is maintainable when there is interference with lawful possession, and a declaration of title is not necessary unless there is a genuine dispute over the title.
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