Allahabad High Court
Executive Engineer Vidhyut ... vs Smt. Latesh Gupta And 5 Others on 7 July, 2022
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 4
Case :- SECOND APPEAL No. - 566 of 2022
Appellant :- Executive Engineer Vidhyut Bhandar Kendra And Another
Respondent :- Smt. Latesh Gupta And 5 Others
Counsel for Appellant :- Jitendra Sarin
Counsel for Respondent :- Devid Kumar Singh,Kunal Shah,Suvansit Kumar Jaiswal
Hon'ble Siddhartha Varma,J.
A suit was filed by the plaintiff-respondents being Original Suit No.13 of 2013 and the relief claimed in the suit was that the defendants be ejected from the suit property and also a decree be passed to the effect that all arrears of rent be paid by the defendants. The suit came to be decreed on 23.12.2016. The defendant-appellants filed an appeal being Appeal No.48 of 2017. When the appeal was dismissed on 31.3.2022, the instant Second Appeal was filed.
Learned counsel for the defendant-appellants essentially assailed the impugned judgments and decrees on two grounds, namely - (i) the plaintiffs had not been able to establish with any certainty the identity of the land in question; and (ii) the suit was not maintainable as it was barred by the provisions of U.P. Act No.13 of 1972. Learned counsel for the appellants has drawn the attention of the Court to the decision on Issue No.9 of the Trial Court and has stated that despite the fact that the Court had, in the order, dealt with the fact that plot no.388 was transferred to the plaintiffs, the decree was passed with effect to a land which measured 2000 sq. yard and had a boundary wherein on the eastern side Urmila Public School was situate; on the western side there was a road; on the northern side M.G. Road existed and on the southern side house of Salim was situate. He, therefore, submits that there was an error committed by the Trial Court in concluding that the property which the plaintiffs had purchased from one Shama Hasan and Mubarak Begum through a general power of attorney was not the property for which the decree of eviction was passed.
In reply, learned counsel appearing for the plaintiff-respondents stated that a bare perusal of the paragraph no.10 of the written statement, made it clear that the defendants had agreed that for the land in question, the defendants had never objected to the fact that the plaintiffs were the landlords and that they were entitled for getting the rent if it was demanded from them. Learned counsel for the plaintiff-respondents also submitted that the relationship of landlord and tenant was not denied. Still further, it has been stated that the identity of the property in question was never challenged by any denial in the written statement.
While pressing the second issue of non-maintainability of the suit, learned counsel for the defendant-appellants submitted that since the property was a built-up property, the suit was barred by the provisions of Act No.13 of 1972.
Countering this argument of the defendant-appellants, learned counsel for the plaintiff-respondents submitted that when earlier suit for eviction was filed in the Court of Judge, Small Causes being SCC No.23 of 2008, there was a definite finding returned therein while the Court was deciding the Issue No.2 that the property was an open land and the suit under the provisions of Act No.13 of 1972 was not maintainable. Learned counsel for the plaintiff-respondents, therefore, submitted that the finding given by the Court was binding for all practical purposes unless it was challenged and set aside. He, therefore, submits that the findings operated as res-judicata.
Having heard learned counsel for the parties, the Court finds that there is no merit in both the grounds pressed by the appellants. No substantial question of law is involved in the Second Appeal which warrants consideration. The instant appeal is concluded by findings of fact.
The instant appeal is, accordingly, dismissed.
Order Date :- 7.7.2022
GS
(Siddhartha Varma, J.)
