Allahabad High Court
Amit Chauhan vs Smt. Samlesh And Another on 2 December, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- SECOND APPEAL No. - 983 of 2015
Appellant :- Amit Chauhan
Respondent :- Smt. Samlesh And Another
Counsel for Appellant :- Rahul Kumar Tyagi
Hon'ble Pramod Kumar Srivastava, J.
1. Original Suit No. 1312 of 2009 was decreed by judgment dated 16.02.2015 passed by the Court of Additional Civil Judge (S.D.), Meerut; against which Civil Appeal No. 10 of 2015 was preferred. Said appeal was allowed by the judgment dated 13.08.2015 of the court of District Judge, Meerut. Against the judgment of the first appellate court this Second Appeal has been preferred by the plaintiff/defendant of the original suit.
2. Heard learned counsel for the plaintiff-appellant on the point of admission of second appeal and perused the records.
3. Learned counsel for the appellant contended that since it is proved that plaintiff/appellant is owner of disputed property and is in its possession, therefore, his appeal should be admitted for being allowed.
4. Previous owner of disputed property Kehar Singh had executed two registered will deeds. The first deed of will dated 30.09.2004 was executed in favour of defendant nos. 1 and 2 (present respondents). This second will-deed dated 23.08.2008 was executed by Kehar Singh in favour of plaintiff/respondent. After that Kehar Singh died on 31.07.2009. Then plaintiff had filed original suit no. 1312/2009 claiming his rights over property of Kehar Singh on the basis of his second will-deed dated 23.08.2008. The trial court had accepted his averments and held him owner of disputed property on the basis of will-deed dated 23.08.2008 executed by earlier owner Kehar Singh. But the first appellate court had reversed this finding of trial court and held that this second will is not acceptable.
5. From the evidences, it is found that during his life time the Kehar Singh had denied the all claim of plaintiff/appellant and his father over disputed property and for which civil litigation was going on between them, which was pending till time of death of Kehar Singh. If the basis of claim of plaintiff/appellant has been the ownership of disputed property on basis of will executed by Kehar Singh, then this plea appears unacceptable in view of the fact that Kehar Singh was litigating with plaintiff and denying his rights and claimed over his property. The trial court had not considered this point. Apart from it, the first appellate court had given specific finding of fact that in suit of permanent injunction the possession of plaintiff, as pleaded in plaint, is also not proved. This finding of first appellate court has been given after appreciation of evidences and are apparently acceptable.
6. The first appellate court had also appreciated facts and evidences and gave specific finding of fact that plaintiff is in possession of aforesaid three disputed plots. This finding appears to have been passed after consideration of all the adduced evidences and the conclusions reached by the first appellate court are apparently correct and acceptable. This Court in second appeal would not re-appreciate the evidences to disturb such finding recorded by the first appellate court.
7. Learned counsel for the appellants relied on Anathula Sudhakarv. P. Buchi Reddy, 2008 LawSuit(SC) 1186 in which Apex Court had held that
"where the title of plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file suit for declaration, possession and injunction." This ruling will not help appellant in present case. The title of plaintiff-respondent is established and proved fact. The first appellate court had also gave specific finding of possession of plaintiff. The status of defendant-appellant is that of a trespasser. In Premji Ratansey Shah v. Union of India, (1994) 5 SCC 547 the Apes Court had held-
"5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
8. Considering these facts and legal position contentions of appellant's counsel regarding right to get relief of injunction are found unacceptable.
9. On examination of the reasoning recorded by the learned first appellate court in first appeal, I am of the view that judgment in first civil appeal as above is well reasoned and is based on proper appreciation of entire evidences on record. In this matter only dispute between the parties was relating to ownership and possession of plaintiffs over disputed property. These are matters relating to fact. The ownership of plaintiff over disputed plots is admitted and proved fact, and the possession could only be decided on the basis of evidence, as it was decided in this matter by first appellate court. No perversity or infirmity is found in finding re corded by the first appellate court to warrant interference through this appeal. No question of law, much less a substantial question of law, was involved before this Court. None of the contentions of the learned counsel for the appellants/defendants can be sustained.
10. In view of above, this Court finds that no substantial question of law arises in this appeal. Therefore, second appeal is dismissed.
Order Date :- 2.12.2015
Sanjeev
