Allahabad High Court
Rajendra And Another vs Kashinath And 15 Others on 5 July, 2022
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- SECOND APPEAL No. - 558 of 2022
Appellant :- Rajendra And Another
Respondent :- Kashinath And 15 Others
Counsel for Appellant :- Rahul Kumar Tyagi,Vinod Singh
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the appellants.
This is a defendants' appeal challenging the judgment and decree dated 2.3.2022 / 9.3.2022 passed by the Additional District Judge, (Prevention of Corruption Act), Court No.04, Varanasi passed in Civil Appeal No. 155 of 2014 (CNR No. UPVR010007032014) as well as judgment and decree dated 27.8.2014 passed by the Civil Judge (Junior Division), Varanasi in Original Suit No. 733 of 1969 whereby the courts below have decreed the suit of the plaintiffs / opposite party for mandatory injunction directing the defendants - appellants to remove their constructions made on the suit property.
The plaintiffs pleaded title over the suit property on the basis of a sale deed executed in 1918. The defendant pleaded title over the suit property on the basis of a sale deed executed in 1925. The judgments of the courts below, annexed with the memorandum of appeal also indicate that, in the alternative, the defendants - appellants had pleaded adverse possession over the suit property. The courts below after recording a finding that the boundaries of the purchased property as shown in the sale deed dated 1918 identified with the boundaries of the suit property as detailed in the plaint. The courts below have also recorded that the defendants - appellants had not been able to prove adverse possession over the suit property.
The findings recorded by the courts below are findings of facts recorded after considering the relevant and material evidence on record. The records do not indicate any perversity in the aforesaid findings so as to raise any substantial question of law calling for interference under Section 100 of the Code of Civil Procedure, 1908.
It was argued by the counsel for the defendants - appellants that the defendants - appellants had claimed title over the suit property on the basis of sale deed dated 1925 and had never raised the plea of adverse possession.
A perusal of the judgment of the trial court shows that an issue regarding adverse possession had been framed by the trial court. There is no averment or anything on record to show that the defendants - appellants had objected to the said issue having been framed by the trial court. The lower appellate court has also recorded that the defendants - appellants had mainly argued their appeal claiming adverse possession over suit property. The recital in the judgment of the appellate court regarding proceedings before the lower appellate court cannot be controverted in a second appeal. The defendants - appellants did not file any review application before the appellate court stating that they had never intended to claim adverse possession over the suit property. In view of the aforesaid, the argument of the counsel for the appellants that they never claimed adverse possession over the suit property cannot be accepted.
No substantial question question of law arises in the present appeal.
The appeal is dismissed.
Order Date :- 5.7.2022
Satyam
