Prem Chand vs Kanpur Development Authority ...
2015 Latest Caselaw 2799 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR										RESERVED
 
Court No. - 3
 

 
Case :- WRIT - C No. - 61998 of 2005
 

 
Petitioner :- Prem Chand
 
Respondent :- Kanpur Development Authority Thru' Secy.
 
Counsel for Petitioner :- H.N. Singh,B. Narayan Singh,O.P.Singh,S.K.Rao
 
Counsel for Respondent :- Ramesh Upadhayay,S.C.,Saroj Yadav,Vivek Verma
 

 
Hon'ble Krishna Murari,J.

Hon'ble Amar Singh Chauhan,J.

(Delivered by Hon'ble Amar Singh Chauhan, J.)

Shri Prem Chand, (deceased) through legal representatives, 1/1 Smt. Geeta, widow of late Prem Chand; 1/2 Rajesh Kumar, Son of late Prem Chand; and 1/3 Mukesh Kumar son of late Prem chand, the petitioners by this writ petition have prayed this Court seeking a writ of mandamus to command the respondent not to interfere with the possession of the petitioner or in any manner damaging or destroying the construction standing on the disputed plot and not to make further auction of the plot of the petitioner being plot no. 1824, W Block Keshav Nagar, Hameerpur Road, District Kanpur Nagar.

The petitioner has approached this Court raising a grievance that the respondents threatened to demolish the construction of the petitioner on the ground that land in dispute was acquired by Kanpur Development Authority, Kanpur and award was made on 21.2.1946. The case set up by the petitioner is that his grand father was granted a lease in the year 1944 of plot no. 1824 area 6 Biswa by then Zamindar late Smt. Shiv Rani Puari through Ram Nath and a residential house was constructed on the said plot and since then they are residing. Further, in the year 1984 after getting threat of demolition of the construction of the petitioner by the then Regional Inspector Enforcement Department, he has filed an Original Suit No. 1137 of 1984 in the Court of Munsif Sadar, District Kanpur which was decided by judgment and decree dated 20.2.1995 passed by IIIrd Additional Civil Judge, Kanpur Nagar restraining the respondent not to interfere in possession of the petitioner against which a Civil Appeal No. 41 of 1995 (Kanpur Development Authority Vs. Prem Chand) was filed by the respondent in appellate court which was dismissed in default vide order dated 4.12.1998 annexed as Annexure-5 to the writ petition. It is pointed out that the respondent has not challenged the order dated 4.12.1998 before any competent forum and as such the order dated 4.12.1998 and trial court's order dated 20.2.1995 have attained finality meaning thereby the respondent has been restrained from any interference in the possession of the petitioner in disputed plot.

We have heard Sri O.P. Singh, learned senior counsel assisted by Sri S.K. Rao for the petitioner and Sri Saroj Yadav for the Kanpur Development Authority.

It is urged by the learned counsel for the petitioner that petitioner's Arazi No. 1824 is neither acquired on 21.2.1946 nor the possession of said plot was taken by the Land Acquisition Officer, Kanpur Development Board, Kanpur on 14.6.1946 nor by any other Authority. It is also urged that on 15.11.1944 the great grand father of the petitioner/Prem Chand was granted a lease of Arazi No. 1824 measuring its area 6 Biswa situated at Mauza Juhi Kalan, Mohal Dalip Chand Pargana, Tehsil and District Kanpur by the then Zamindar Smt. ShivRani widow of late Gajraj Singh through Ram Nath Singh who was authorized by the Zamindar to execute the said patta to him. Thereafter the grand father of the petitioner has constructed his house over the dispute Arazi and for the last fifty years his family members are residing therein. It is also submitted that the civil court has held that the petitioner was the owner of the disputed plot on the basis of the adverse possession, against which appeal filed by the Authority was also dismissed vide order dated 4.12.1998. Therefore, the decree of the civil court has attained finality.

Per contra, learned counsel for the respondent, Kanpur Development Authority has submitted that it was merely an injunction suit and so far as the title and ownership is concerned, the same vests with Kanpur Development Authority in view of the acquisition notification, award and possession being taken over and compensation having paid to the then owner.

Main points for consideration are that whether the judgment and decree dated 20.2.1995 passed in Original Suit No. 1137 of 1984 with respect to the disputed land has attained the finality and whether the notification, declaration and award under the Improvement Trust Act was in respect to the disputed plot no. 1824 and its effects.

The acquisition award neither mentioned the property number nor disclosed that the disputed property was acquired by the State. Possession memo is also sketchy and casual and not disclosing the details from whom possession was taken and to whom compensation was given. The issue with respect to symbolic possession through Government Orders, was subject matter of consideration by a Division Bench in the case of Lalla & Ors. Vs. State of U.P. & Ors., 2014 (107) ALR 484, wherein it has been held as under:

"11.The law does not contemplate transfer of possession by government orders. It needs to be clarified that the land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under section 10(5) or 10(6) of the Act. The local authorities/development authorities merely steps into shoes of the State government. If the State government through the Collector/District Magistrate has not taken possession over the land in question, as contemplated by law, the transfer of possession in favour of the local authorities/development authorities cannot be presumed under government order. If the possession of land has not been taken by the State, as per the procedure already determined by the Apex Court, the local authorities/development authorities cannot claim independent right over the land merely on the strength of the government order.

So far as the decree of injunction is concerned Halsbury's Laws of England Vol. 11 5th edn. on 1.3.2009 Civil Procedure, para 333 laid down that;

"perpetual injunction is granted after a final determination of the rights of the parties. It is made at the determination of the suit for giving effect to, and for protecting rights. It obviates the necessity of bringing action after action in respect of every infringement of the rights so determined."

In P. Buchi Reddy and Ors. Vs. Ananthula Sudhakar [1999 (Suppl.) Civil Court Cases 57 AP] in para 13 it was observed as under:-

"13. There is also no substance in the contention raised by the learned counsel for the respondent that the plaintiffs' suit is not maintainable without seeking for declaration of title. The learned counsel for the respondent also contends that the defendant disputed the title of the plaintiffs with respect to the suit land and in spite of such denial of title, the plaintiffs did not choose to get the plaint amended SBCSA NO. 114/2004 seeking declaration of title. It is not the law that the plaintiff should get his plaint amended as soon as the plaintiff's title is disputed in the written statement filed on behalf of the defendant in a suit for injunction filed under Section 38 of the Specific Relief Act. It is well settled that in a suit for injunction the primary question to be considered is one of possession on the date of filing of the suit. Of course, the question of title also may be gone into incidentally. It is also well settled that a person in possession though without title, can resist interference from another who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. Under sub-section (3) of Section 38 a perpetual injunction may be granted to the plaintiff when the defendant invades or threatens to invade the plaintiffs right to or enjoyment of property where the invasion is such that compensation in money would not afford adequate relief and where the injunction is necessary to prevent multiplicity of judicial proceedings.

The Hon'ble Apex Court in the case of Corporation of the City of Bangalore Vs. M. Papaiah and others [AIR 1989 SC 1809] observed that suit for decree of perpetual injunction restraining defendant from interfering with the possession of the plaintiff over the land in dispute, such suit could not be dismissed on the ground of non-seeking of relief of declaration of title specifically in the plaint........ The plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the corporation. The Rajastahan High Court-Jodhpur in the case of Urban Improvement Trust, Bikaner Vs. Gordhan Dass and others (Second Appeal No. 114 of 2004 decided on 12.1.2010) held that the plaintiff-respondent purchased the land by valid registered sale deeds and acquired the title and possession in the month of March 1970 and even if

there is acquisition proceeding subsequent thereto after about a period of more than two years without there being notice to the true owner of the land, such acquisition proceeding is otherwise void and nullity. So far as deciding the question of grant of SBCSA NO. 114/2004 perpetual injunction what the Court is required to see as to whether the plaintiff could establish its possession coupled with the title and in the instant case, the appellant defendant UIT admitted the possession and title of the plaintiff-respondent in their written statement. In my view, thereafter nothing more is required to conclude that the plaintiff respondent is entitled to protect his property from any interference by the appellant defendant UIT. As has been held in the preceding paras that to decide the controversy involved in the suit, the Civil Court has jurisdiction and therefore, the trial court was justified in entertaining the suit.

In the case in hand, a lease was granted to the great grand father in 1944 and his family was residing since then by constructing a house. In Original Suit No. 1137 of 1984, a perpetual injunction also granted in favour of the petitioner over the disputed land no. 1824 and attained its finality as the Civil Appeal filed by the respondent had already been dismissed. There is no details of the property number in the acquisition award made in 1946 i.e. after two years of the so called lease granted in favour of the petitioner's ancestor. It is not established that property in question had been acquired. After perusal of the acquisition award and memo of possession, it is also not made clear that from whom possession was taken and to whom compensation was given whereas the possession is settled with the petitioner by civil court judgment and decree passed in Original Suit No. 1137 of 1984.

In the light of the aforesaid facts and discussions, it is clear that the petitioners have established their right, title and interest over the property in dispute. Hence writ petition deserves to be allowed.

Accordingly, the writ petition succeeds and stands allowed. A writ of mandamus is issued commanding the respondent not to interfere with the possession of the petitioner over the land in dispute in any manner damaging or destroying the construction standing on the disputed plot.

There shall be no order as to costs.

Order Date :- 30.9.2015

AK