Allahabad High Court
Prakashi @ Surajbali And Another vs Ahsan And 4 Others on 28 June, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- SECOND APPEAL No. - 44 of 2021
Appellant :- Prakashi @ Surajbali And Another
Respondent :- Ahsan And 4 Others
Counsel for Appellant :- Ram Sajiwan Mishra
Counsel for Respondent :- Santosh Kumar Srivastava,Alka Srivastava
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ram Sajiwan Mishra, learned counsel for appellants and Sri Santosh Kumar Srivastava, learned counsel for respondent-defendants.
2. This is plaintiff's second appeal filed under Section 100 of Code of Civil Procedure. This appeal has been filed by the appellants, who were plaintiffs before the trial court and appellants before the First Appellate Court, being aggrieved of judgment/order dated 16.12.2017 passed in Misc. Civil Suit No. 12 of 2010, so also the judgment and decree dated 22.12.2020, passed by learned First Additional District and Sessions Judge, Baghpat in Civil Appeal No. 01 of 2018.
3. Brief facts of the case are that appellant-Prakashi @ Surajbali had filed a suit for permanent injunction. This suit was in regard to a plot, contained in Khasra No. 1233.
4. It has come on record that this suit was decreed by the trial court vide order dated 22.12.1998. Thereafter, one Devendra, who claimed himself to be a successor of Munshi, sold this plot in favour of plaintiff-Ahsan s/o Umardeen.
5. Appellant's case is that he had filed an application for restoration of possession and that was allowed and appellant was put into possession of the land in question. Thereafter, an application was filed by the purchaser i.e., defendant no. 1-Ahsan under Order XXI Rule 98, 100 and 101 CPC, taking objection to the execution of the judgment and decree dated 22.12.1998.
6. Upon hearing such objections, as were filed by Ahsan s/o Umardeen, learned trial court vide impugned judgment/order dated 16.12.2017, refused to execute the judgment and decree, passed in favour of the appellant-Prakashi @ Surajbali on 22.12.1998.
7. When this Court specifically asked Sri Mishra, learned counsel for appellants that where from he is drawing title over the land, contained in Khasra No. 1233, firstly, Sri Mishra submits that plaintiff drew his title from his ancestors and this being an abadi land, was settled in his favour. Thereafter, he submits that Devendra was not allotted concerned piece of land, in regard to which suit was instituted by the plaintiff. Thereafter, Sri Mishra submits that 26 plots were demarcated and allotted by the revenue authorities and plot allotted to Devendra is different from the plot allotted to the plaintiffs.
8. In this backdrop, Sri Srivastava submits that in fact, there is neither any settlement of the plot in question in favour of the plaintiff nor he has been able to prove the title. It is also submitted that a case of adverse possession was also not set up by the plaintiff, so to claim title of the property on the basis of adverse possession. In view of such facts, when appellant-plaintiff has failed to prove the title of his own on the land in question , then trial court has not committed any illegality or irregularity in allowing the application under Order XXI Rule 98, 100 and 101 C.P.C. and directing the defendant to obtain possession of the land in question, if the plaintiff fails to handover the possession on its own.
9. After hearing learned counsel for the parties and going through the record, it is evident that plaintiff has failed to prove his title over the suit land. It has come on record that once defendant-Devendra came to know of the fact that appellant has encroached upon the piece of land, then he had taken possession of the land through Office of Sub-Divisional Magistrate. It has also come on record that ex-parte judgment was passed in favour of the plaintiff-appellant, in Original Suit No. 67 of 1993 vide order dated 27.01.1996.
10. At this stage, learned counsel for the parties submits that they have erroneously mentioned the date of the order as 22.12.1998 whereas it is in fact 27.01.1996 i.e., document no. 26 Ka/1, available in the record as Annexure-4.
11. Looking to the fact that appellant has failed to prove his title over the land in question, ex-parte injunction will not fortify his title and therefore, in absence of title, impugned judgment and decree, passed by the courts below in the execution proceedings and in the appeal, cannot be faulted with. No substantial question of law arises for adjudication in the present second appeal under Section 100(5) C.P.C. and therefore, appeal fails and is dismissed.
Order Date :- 28.6.2021
Vikram/-
