Allahabad High Court
Taukeer Ahmad And Others vs Van Vibhag U.P. Prabhagiya Vaniki ... on 25 March, 2021
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- SECOND APPEAL No. - 265 of 2012
Appellant :- Taukeer Ahmad And Others
Respondent :- Van Vibhag U.P. Prabhagiya Vaniki Vanadhikari And Another
Counsel for Appellant :- Shyam Babu Vaish,Deepak K. Jaiswal,Pavan Kumar
Hon'ble Saral Srivastava,J.
Heard learned counsel for the appellant.
The present appeal has been filed by the plaintiffs-appellants challenging the judgment and decree dated 19.10.2011 passed by the Additional Civil Judge (Junior Division)/Judicial Magistrate, Room No.1, Nagina, Bijnor dismissing Suit No.6 of 2005 and the judgment/decree dated 25.1.2012 passed by the Additional District Judge, Court No.5, Bijnor dismissing Civil Appeal No.136 of 2011 filed by the plaintiffs-appellants.
The plaintiffs-appellants instituted a suit for decree of permanent injunction against the defendants-respondents restraining them from interfering with the peaceful possession of Arazi Khasra No.46 and 56 having area 0.090 and 2.959 hectares, situated in Village Begampur Jani, Pargana Barapur, Tehsil Nagina, Bijnor
The case of the plaintiffs-appellants is that Gram Sabha Baragaon had instituted a lease deed in favour of the plaintiffs-appellants on 17.2.1955 in respect of Araji No.46 and 56. It is further pleaded that prior to consolidation the old numbers of the said Araji were 42/1/42/6 and 42/7/2.
The said suit was contested by the defendants-respondents denying the fact that the plaintiffs-appellants are the owner of the property in dispute on the basis of lease deed dated 17.2.1955. It is further pleaded by the defendants-respondents that the plaintiffs-appellants were not the owner of the property in dispute.
On the basis of pleadings the trial court has decided Issue No.1, which reads as under:
"1- ???? ??????? ??? ?????? ????? ?? ???? ?? ???? ??????? ????? ?? ????? ????? ?? ?"
The trial court after appreciating the testimony of P.W.1-Khursheed Ahmad and P.W.2-Shamim Ahmad and also documentary evidence on record held that the plaintiffs-appellants have failed to prove the lease deed dated 17.2.1955. The trial court also noticed that the plaintiffs-appellants have failed to prove that the old number of the property in dispute were 42/1, 42/6 and 42/7/2. After recording the said findings the trial court decided Issue No.1 against the plaintiffs-appellants.
The Issue No.5 framed by the trial court reads as under:
"5- ???? ??? ??????? ? ????? ?? ????????? ?? ????? ??, ???? ?? ???????????? ?? ????-18 ??? ??? ??? ???"
The trial court held that the defendants-respondents have failed to prove that the suit is barred by estoppel and acquiescence.
After recording the said finding, the trial court dismissed the suit.
The plaintiffs-appellants preferred appeal against the said judgment, which was also dismissed by the court of Additional District Judge, Court No.5, Bijnor affirming the findings of the trial court.
Challenging the aforesaid orders of the court below, learned counsel for the appellants contended that once issue no.5 has been decided against the defendants-respondents, it impliedly proves that the plaintiffs-appellants are in possession over the property in dispute since long, and as such, they are entitled to decree of permanent injunction against the defendants-respondents.
Be that as it may, the court below after noticing the oral evidence led by the plaintiffs-appellants found that the lease deed is of 1955 and at that time, the Gram Samaj was in existence and not the Gaon Sabha as the Gram Sabha came into scene after the enactment of Uttar Pradesh Kshetra Samiti Evam Zila Parishad Adhiniyam, 1961 notified in 1962, i.e., 18.7.1962 and the plaintiffs-appellants have failed to prove as to how the lease deed was executed by the Gaon Sabha.
The trial court further considered Section 90-A(2) of the Evidence Act to hold that the plaintiffs-appellants could have filed the second copy of the lease deed from the record of the Land Management Committee to prove the lease deed executed in favour of the plaintiffs-respondents which the plaintiffs-appellants have not done. Accordingly, the trial court held that the plaintiffs-appellants have failed to prove the lease deed dated 17.2.1955. The trial court also recorded a finding after appreciating the evidence on record that the plaintiffs-appellants have failed to prove that the old numbers of the property in dispute were 42/1, 42/6 and 42/7/2 of which new Khasra Numbers are 46 and 56 and after recording the aforesaid finding, the trial court decided Issue No.1 against the plaintiffs-appellants, which finding is affirmed by the appellate court.
Learned counsel for the plaintiffs-appellants has failed to demonstrate any illegality or perversity in the findings returned by the trial court on issue no.1.
Since the findings on issue no.1 is based upon proper appreciation of evidence on record and there is no perversity or illegality in the said findings, therefore, this Court also affirms the findings of the trial court.
So far as the contention of learned counsel for the plaintiffs-appellants that issue no.5 was decided against the defendants-respondents and, therefore, it is established that the plaintiffs-appellants are in possession over the property in dispute is also mis-conceived, inasmuch as, issue no.5 was in respect of the fact as to whether the suit is barred by the principles of estoppel and acquiescence. The defendants-respondents claimed that they are in possession of the property since long.
The findings on issue no.5 against defendants-respondents does not ipso facto mean that the plaintiffs-appellants were in possession over the property in dispute.
It is pertinent to note that issue no.1 has been decided by the court below against the plaintiffs-appellants and as such, there is no illegality committed by the court below in dismissing the suit of the plaintiffs-appellants.
Since no substantial question of law arises in the present appeal, which needs adjudication by this Court, therefore, the appeal lacks merit and it is, accordingly, dismissed.
Order Date :- 25.3.2021
SKM
