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IN THE HIGH COURT OF ALLAHABAD
JASPREET SINGH, J.
Ram Abhilakh - Appellant
Versus
Matai - Respondent
Second Appeal No.840 of 1983
Decided on : 13-12-2021
| Table of Content |
|---|
| 1. joint ownership and construction rights (Para 3 , 15 , 16) |
| 2. arguments for mandatory injunction based on co-ownership (Para 6 , 7 , 8 , 9) |
| 3. trial court's findings on ownership and appeal dismissal (Para 18 , 20 , 21) |
| 4. standards for second appeal and substantial questions of law (Para 28 , 29 , 30 , 31) |
| 5. final dismissal of the second appeal, no costs (Para 35 , 36 , 37) |
JUDGMENT :
Jaspreet Singh, J.
1. Heard Shri U.S. Sahai, learned counsel for the appellant. None has put in appearance on behalf of the respondent, despite the service.
2. The Court on 01.12.2021 had heard learned counsel for the appellant at some length, however, on his request, the matter has been listed today for further hearing.
3. The instant second appeal has been preferred against the part of the judgment and decree dated 07.03.1980 whereby the suit of the plaintiff-appellant seeking a decree of mandatory injunction has been refused insofar as the Plot No.2105/1 and Plot No.2105/2 is concerned. The plaintiff preferred a regular civil appeal against the aforesaid part before the lower Appellate Court which has also been dismissed by means of the judgment and decree dated 10.08.1983 passed by Second Additional District Judge, Sultanpur in Civil Appeal No.181/1980.
4. The instant appeal was admitted on 08.12.1983, however, while admitting the appeal, no substantial question of law was framed.
5. The Court required the learned counsel for the appellant to urge on the substantial question of law involved in this second appeal to facilitate its hearing on merits.
6. The submission of the learned counsel for the appellant is that in a suit instituted by the appellant for mandatory injunction where the property bearing Plot No.2105/1 and Plot No.2105/2 has been held to be the joint property of the plaintiff and the defendant as also confirmed by the Consolidation Courts, hence, in the aforesaid backdrop, it was not open for the defendant-respondent to have raised constructions without the partition of the property and in the aforesaid backdrop, the plaintiff-appellant is entitled to seek a decree of mandatory injunction for removal of the constructions raised by the defendant-respondent.
7. It has been submitted that this aspect of the matter has not been properly considered by the Lower Appellate Court while dismissing the appeal and at the same time upholding the findings of the trial court insofar as the right of the plaintiff over the Plot No.2106 is concerned.
8. It is urged that the lower Appellate Court had committed an error in interfering with the findings insofar as Plot No.2106 is concerned, which was decreed in favour of the plaintiff-appellant and the same was not even the subject matter of appeal nor the defendant had filed any cross-appeal against the said findings.
9. It is also submitted that one co-owner cannot raise construction over the joint property land without the consent of other co-owner and if having done so, one co-owner had the right to get the offending construction removed and in view of the aforesaid, the lower Appellate Court has also committed error in ignoring the aforesaid aspect of the matter.
10. Learned counsel for the appellant in order to buttress his submission has also drawn attention of the Court to an application moved by the appellant bearing Civil Misc. Application No.11806 of 2018 purported to be under Order 41 Rule 27 CPC. The appellant has brought on record a certified copy of the order passed by the Settlement Consolidation Officer dated 05.12.1978 passed in Appeal No.1695 between the parties of the instant appeal.
11. The submission is that even in the consolidation proceedings, the rights of the parties insofar as the Plot No.2105/1 and Plot No.2105/2 is concerned, it was held to be joint.
12. It is urged that taking note of the aforesaid decision, it will be helpful in doing substantial justice between the parties and it should be taken note of. The effect would be that once the land in question is foun
High Court in second appeal under CPC Section 100 cannot disturb concurrent findings of fact unless perverse or involving substantial question of law; co-sharer construction on joint land not ouster ....
In second appeals under CPC Section 100, no interference with concurrent findings of fact unless substantial question of law or perversity; co-sharers may develop joint property if partition not impo....
The High Court cannot interfere with concurrent findings of fact unless they are perverse; a substantial question of law must be established for a second appeal under CPC.
Concurrent findings of fact by lower courts should not be disturbed in a second appeal unless a substantial question of law arises, which was not applicable in this case.
Co-owner not entitled to injunction against another's construction on joint land unless proved to amount to ouster or detriment to rights; requires evidence beyond sole testimony, mere jointness insu....
The presumption of truth in the revenue record regarding joint ownership prevails, establishing that separate possession does not equate to partition without legal acknowledgment under relevant land ....
Co-sharer suppressing own construction on joint land approaches without clean hands and cannot restrain others from constructing on their exclusive portion; injunction requires proof of prejudice or ....
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.
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