Shiv Prasad And Others vs Adya Prasad And Others
2023 Latest Caselaw 9699 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- SECOND APPEAL No. - 458 of 1986
 

 
Appellant :- Shiv Prasad And Others
 
Respondent :- Adya Prasad And Others
 
Counsel for Appellant :- Shyam Mohan,Dr. R.K.Srivastava,M.P.Yadav,Mata Prasad Yadav,P.K.Srivastava
 
Counsel for Respondent :- R.P.Shukla,P.N.Srivastava,R.C.Shukla,Raj Kumar Pandey,S.P.Shukla
 

 
Hon'ble Jaspreet Singh,J.

1. Heard Shri M.P. Yadav, learned counsel for the appellants. None has put in appearance on behalf of the respondents.

2. The instant second appeal has been preferred against the judgment and decree dated 28.01.1985 passed by the Munsif, North, Sultanpur in Regular Suit No.150/1977 by means of which the suit filed by the plaintiffs-appellants for perpetual and mandatory injunction came to be dismissed. The plaintiffs had preferred a regular civil appeal before the lower Appellate Court, registered as Civil Appeal No.5/1985 which also came to be dismissed by means of the judgment and decree dated 15.03.1986.

3. Being aggrieved against the aforesaid concurrent judgments and decree, the learned counsel for the appellants has pressed the aforesaid second appeal.

4. It may also be noticed at this stage that the appellants No.1 and 6 as well as the respondent No.4 had died during pendency of the aforesaid appeal. However, upon an application for substitution moved by the appellants, the same was allowed and the legal heirs have been impleaded.

5. The record also indicates that the instant appeal was preferred along with an application under Section 5 of the Limitation Act and by means of the order dated 08.11.2017, the application under Section 5 of the Limitation Act was allowed and thereafter the matter is being listed for admission.

6. Learned counsel for the appellants while making his submissions on the admission of the appeal submitted that two courts have failed to consider that the plaintiff was the sole successor of Ram Bharose and that the plaintiff was the owner in possession of the property in dispute and since the defendants were interfering in the use and occupation of the plaintiff over the property in dispute, the suit for perpetual and mandatory was filed.

7. It is further urged that Ram Bharose did not have any legal heir except the plaintiff-appellant and his daughter had already pre-deceased him so also his wife and in the aforesaid context, the plaintiff being the sole legal heir was legally entitled to inherit as well as to maintain the property of which he was in possession and this aspect has not been considered by the two Courts in correct perspective.

8. It has further been urged by the learned counsel for the appellant that before the lower Appellate Court, the plaintiff had filed certain evidences and it also moved an application for amendment which came to be dismissed which has prevented the plaintiff to contest the matter in an effective manner and as such the judgments of the two Courts are bad in the eye of law and consequently, the appeal deserves to be admitted.

9. Having heard learned counsel for the appellant and before dealing with his submissions, it will be necessary to notice certain brief facts giving rise to the instant appeal.

10. The case set up by the plaintiff was that Ram Bharose was the real brother of the plaintiff's father (real uncle of the plaintiff). Since, Ram Bharose died issueless as his daughter Smt. Leela alias Shyama had pre-deceased him accordingly the land allotted to Ram Bharose and the portion of the ancestral house situate on the site which was shown by letters 'Ka', 'Kha', 'Ga' and 'Dha' on the sidelines and morefully described in the map annexed with the plaint in suit was possessed by the plaintiff. It was also pleaded that the plaintiff and the defendant jointly held the 'abadi' land and the trees lying thereon. Since, the defendant had demolished some part of the portion in use and occupation of the plaintiff and the defendant also threatened to cause interference in the peaceful possession, accordingly, the suit for permanent and mandatory was filed which was registered as Regular Suit No.150/1977 in the Court of Munsif, North, Sultanpur.

11. The suit came to be contested by the defendants-respondents denying the title and possession of the plaintiff. It was pleaded that the property in dispute belonged to Ram Bharose exclusively and that Ram Bharose died leaving behind five daughters namely Rajpati, Kaila @ Keola, Shyama, Phoola and Chandravati. It is also the case that one of the daughter namely Keola, who was residing with Ram Bharose and used to serve him. The other sisters had relinquished their share in favour of Smt. Keola. It is Smt. Keola and her husband Ram Raksh Dube, who had transferred and the land in question in favour of the defendants by means of the sale-deed dated 17.06.1976 and since then they were in its exclusive possession.

12. On the pleadings of the parties, the trial Court had framed ten issues. However, the main issues upon which the suit was contested was (i) whether the plaintiff is the owner of the disputed property as alleged by him; (ii) whether the plaintiff is the owner in possession of the trees as claimed by him; (iii) whether the disputed construction is liable to be demolished at the instance of the plaintiff; and (iv) what relief the plaintiff is entitled.

13. The trial Court considering the evidence led by the parties dismissed the suit of the plaintiff by means of the judgment and decree dated 28.01.1985 holding that the plaintiff could not establish his ownership or possession over the land or in respect of the disputed trees. It also held that the plaintiff could not claim to have succeeded to the property of Ram Bharose as he had not died issueless rather he was survived by his daughters but later had sold the property to the plaintiff.

14. It is primarily assailing these findings that the plaintiff preferred a regular civil appeal under Section 96 CPC, bearing No.5/1985. The lower Appellate Court considering the facts and circumstances framed two points for determination, (i) as to whether Ram Bharose died issueless and if so whether the plaintiff succeeded to his estate and (ii) whether the plaintiff had proved his case in respect of the ahata land. The lower Appellate Court after hearing the parties by means of the judgment dated 15.03.1986 dismissed the appeal and it is being aggrieved against the same that the plaintiff-appellant is before this Court.

15. In the aforesaid backdrop, if the submission of the learned counsel for the appellant is seen, it would indicate that the two Courts have categorically noticed that Ram Bharose had died leaving behind his five daughters. This basic fact was disproved as the plaintiff could not establish that he had survived being the sole legal heir of Ram Bharose. Both the trial Court as well as the lower Appellate Court found that the testimony of the plaintiff was not reliable.

16. Reliance was also placed on the entries made in the family register which clearly proved that Ram Bharose was survived by his daughters and the basic premise upon which the plaintiff had instituted the suit claiming rights in the property as having succeeded to the estate of Ram Bharose stood falsified.

17. On the other hand, the defendant produced the Village Pradhan as one of the witnesses. The documents in the shape of family register and extracts of the Gram Samaj indicated that the name of Ram Raksh Dube was entered as head of the family and his family consisted of him and his three daughters. Ram Raksh Dube was the husband of Smt. Keola, one of the daughter of Ram Bharose, and even the Village Pradhan stated that two daughters of Smt. Keola were still alive. It is taking note of the aforesaid that the findings recorded by the two Courts were affirmed.

18. Learned counsel for the appellant could not point out any perversity in the said findings recorded by the two Courts nor could dispute the fact that Ram Bharose had five daughters. Thus, the basic premise upon which the plaintiff had initiated the litigation stood falsified.

19. Insofar as the second point regarding possession over the ahata land is concerned, the same also did not find favour with the two Courts as it was held that the plaintiff was not in possession nor he had any right thereon. Though an attempt has been made by the plaintiff before the lower Appellate Court to move an application for amendment to introduce certain new facts regarding the previous litigation that took place between Ram Bharose and the plaintiff and certain proceedings which were held before the Consolidation Courts between the plaintiff and Smt. Rajpati and others i.e. the daughters of Ram Bharose and it was urged that certain compromise had been arrived at in terms whereof the rights of the plaintiff had been recognized. It was also sought to be urged that the compromise arrived at before the Consolidation Authorities operates as res-judicata.

20. However, even the aforesaid ground does not impress the Court for the reason that the compromise as alleged was never placed before the lower Appellate Court. It was only an application for amendment which was sought to be moved and having moved the application for amendment which completely change the complexion of the pleadings of the plaintiff was rightly not considered especially when the plaintiff after having contested the proceedings knew the fact that Ram Bharose had left his five daughters but this was deliberately not stated in the plaint rather the case set up was that the plaintiff was the sole heir of Ram Bharose.

21. Having considered the aforesaid matter and noticing the material on record, this Court finds that no substantial question of law is involved as the appeal before this Court and the appeal is concluded by concurrent findings of fact which have been recorded by the two Courts based on evidence available on record.

22. Learned counsel for the appellant could not demonstrate any illegality or perversity in the said findings and in absence of any such error, this Court is not persuaded to exercise the powers under Section 100 CPC to entertain the appeal especially noticing that the suit came to be dismissed in the year 1985 and even the first appeal came to be dismissed and this second appeal has been pending before this Court since 1986 without any order on admission and in the aforesaid circumstances where no error could be pointed out or any substantial question of law could be formulated, this Court finds that the appeal sans merit and is accordingly dismissed at the admission stage.

23. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 04.04.2023

Rakesh/-