Allahabad High Court
Tilakdhari vs Shiv Poojan & Others on 15 July, 2021
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- SECOND APPEAL DEFECTIVE No. - 227 of 2021
Appellant :- Tilakdhari
Respondent :- Shiv Poojan & Others
Counsel for Appellant :- Shyamdhar Pandey
Hon'ble J.J. Munir,J.
Heard Mr. Shyamdhar Pandey, learned Counsel for the plaintiff-appellants.
This is a plaintiffs' second appeal arising from a suit for permanent injunction. The plaintiff-appellants instituted Original Suit no.347 of 1990 before the Ex-Court of Munsif, Ramanpur, Varanasi seeking a permanent prohibitory injunction to the effect that the defendants be perpetually restrained from interfering with the plaintiffs' possession over land shown by letters A B C D or raising constructions thereon or to demolish cattle tethers, troughs etc. located there. The plaintiffs claimed their right to the said land on the basis of an abadi patta granted in favour of plaintiff no.2 on 25.09.1979 with an assertion that ever since the grant of the patta the plaintiffs are in ownership possession of the demised land, that is to say, the suit property.
The defendants contested the said suit on the ground that the suit property has been leased in their favour by the Gaon Sabha according to Rules on 16.09.1981 at a premium of Rs.32/- for the purpose of plantation of trees. The defendants claim that they are in possession of the suit property where they have planted several trees, including fruit bearing trees, like mango, guava, katahal, besides neem.
The Trial Court framed five issues, whereon the parties went to trial leading both, documentary and oral evidence. The first issue is whether the plaintiffs are owners in possession of the suit property. In answering this issue, the Trial Court has remarked that in proceedings drawn under Section 122-B of the U.P. Z.A. & L.R. Act against the plaintiffs and the defendants, both of them were found in possession. The Trial Court also held, on the basis of two khasra, bearing paper nos.67-Ga and 68-ga and the decision of the Additional Tehsildar dated 26.04.1990, that a patta relating to the land in dispute was granted in favour of the defendants for the purpose of planting trees, but the plaintiffs and the defendants were both in possession of the suit property.
Nevertheless, the Trial Court has remarked that the plaintiff has not filed on record any document to establish the grant of patta in his favour and has also not produced any documentary evidence to establish his possession. There is some incongruity in the findings of the Trial Court, which the lower Appellate Court, in its concurring judgment, has rectified. The lower Appellate Court has held that from the order of the Naib Tehsildar dated 26.04.1990 it is clear that the entire area of khasra no.386 was proposed to be granted to Tilakdhari and his sons, that is to say, the plaintiffs for the purpose of constructing constructing their abadi and a receipt was also issued by the Gram Pradhan in favour of his son, Ram Hinchh. But, lateron the Pradhan issued a receipt in favour of Shiv Pujan, the defendant towards premium of a patta for plantation. It has further been held that from all the documents on record, what appears to be the case is that, for the plaintiff there was just a proposal to grant a patta, but the required permission of the S.D.M. was never granted. As such, no patta was ever granted in favour of the plaintiff.
From the concurrent findings recorded by the two Courts below, it is apparent that they have neither found title nor possession for the plaintiff. No substantial question of law is involved in this appeal. It is, accordingly, dismissed under Order LXI Rule 11 CPC.
Order Date :- 15.7.2021
Anoop
