Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1848

IN THE HIGH COURT OF ALLAHABAD
UMESH CHANDRA SHARMA, J.
Sushil Kumar Kathooriya - Revisionist
Versus
Span Infradevelopers Pvt. Ltd. - Opposite Party
Civil Revision No. 185 of 2017
Decided On : 12-01-2023

Advocates Appeared:
For the Revisionist : Santosh Kumar Mishra.
For the Opposite Party : Tarun Agarwal, Kshitij Shailendra.

Possession alone can decide the right to the property, and a suit for permanent injunction can be maintained on the basis of possession and possessory title.

Headnote:
Property Dispute - U.P.Z.A. & L.R. Act, Specific Relief Act - 229-B, 331, 31, 38 - Order 7 Rule 11 CPC
Fact of the Case:
The plaintiff filed a suit for permanent injunction against the defendant, alleging forceful occupation of the property in dispute. The defendant raised objections under Order 7 Rule 11 CPC, claiming that the suit was barred by the U.P.Z.A. & L.R. Act and the Specific Relief Act.
Finding of the Court:
The court found that the suit was maintainable based on the agreement for sale and possession, and rejected the defendant's objections under Order 7 Rule 11 CPC.
Issues: Validity of the suit under U.P.Z.A. & L.R. Act and Specific Relief Act, and the maintainability of the suit based on possession.
Ratio Decidendi: The court relied on precedents to establish that possession alone can decide the right to the property, and a suit for permanent injunction can be maintained on the basis of possession and possessory title.
Final Decision: The court dismissed the revision and affirmed the order, holding that the suit was maintainable and the objections raised by the defendant were devoid of merit.

JUDGMENT :

1. This revision has been preferred against the order dated 23.1.2017 passed by Civil Judge (S.D.) Bareilly, in original suit no. 12 of 2017 (Span Infra Developers Pvt. Limited Vs. Sushil Kumar Kathooriya) by which learned Court below has rejected the application 36A moved by the defendants under Order 7 Rule 11 CPC.

2. In brief, facts of the case are that the plaintiff Span Infra Developers-opposite party no. 1 filed the aforesaid suit against the defendant-revisionist for a relief of permanent injunction in respect of property shown by letters ¼v u x c½ in the plaint map. As per the plaint, 1/5th of the total area of gata no. 14 area 4 bigha 7 biswa, gata no. 15 area 9 biswa, gata no. 16 area 17 biswa, gata no. 17 rakabai 10 biswa, gata no. 18 area 13 biswa, gata no. 19 area 13 biswa, gata no. 20/1 area 13 biswa, gata no. 21 area 9 biswa, gata no. 22/1 area 8 biswa, gata no. 23/1, area 1 bigha, gata no. 24/1 area 2 biswa 10 biswansi total 30100 yard of i.e. 6020 square yard was under the ownership and in possession of Laxmi Sahakari Awas Samiti Ltd. through Satish Kumar Agrawal as secretary. This land was purchased by three sale-deeds from its previous owners in the year 1986 and the name of the society was also mutated. On the basis of consent and mutual oral partition, the society came into possession of the property shown by letters Ka Kha Ga and Gha in the plaint map. Apart from this, the society had also got some property of gata no. 23/1 on the east side of the road which has also been sold by the society.

3. On 14.6.2005 through registered sale deed society sold an area of 1315.87 square yard to Sarnath Infrastructure Pvt. Limited, Bareilly, after getting adequate consideration and also delivered the possession of the sold land which is shown by the letters M, N, G and Gha.

4. Sarnath Infra. Pvt. Ltd. executed a registered agreement for sale on 12.9.2012 for an area of 815.44 square yard, shown by the letter A, N, Ga & Ba in favour of the plaintiff. As per term no. 2 of the agreement for sale, Sarnath Infra. Pvt. Ltd. had to raise boundrywall for the property in suit before executing the sale-deed in favour of the plaintiff. Since it could not be done so, therefore, Sarnath Pvt. Ltd. delivered the possession of the said land on 29.10.2012 by the letter of possession and on the request of the plaintiff, it was also notarized on 1.11.2012. Since then the plaintiff is in possession of the property in suit of area of 815.44 square yard and for the protection of the property it has also made some construction thereon.

5. Defendant is a land grabber and a mafia type of person who has no concern with the property in suit even then defendant with some unsocial elements on 5.1.2017 reached on the property in suit and tried to dismantle the constructions and occupy the land in suit forcefully. After getting the information from the security guard, the plaintiff reached on the spot and anyhow got stopped such illegal activities. The defendant left the place but threatened that he will come again and shall take possession of the property in suit. The matter was reported to the police who did not help the plaintiff saying it to be a civil matter. Hence, the cause of action arose and the suit was instituted.

6. The revisionist-defendant appeared in the case and moved an application 36 Ka under Order 7 Rule 11 CPC raising the question that the suit is barred by Section 229-B and 331 of the U.P.Z.A.& L.R. Act. The name of the plaintiff is neither recorded in the revenue record, nor in the agreement for sale, there is averment of delivery of possession. The notarized letter of delivery of possession 24C is a forged document. The plaintiff can file a suit only if the execution of sale-deed is in his name. The suit is barred by Section 31 and 38 of the Specific Relief Act. The plaintiff has not come with clean hands. Neither balance of convenience is in favour of the plaintiff nor any irreparable injury is caused to the plaintiff,