Allahabad High Court
Naresh Chandra Srivastava vs Narendra Kuamar Maheshwari And ... on 4 August, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:51553
Court No. - 19
Case :- SECOND APPEAL No. - 70 of 1987
Appellant :- Naresh Chandra Srivastava
Respondent :- Narendra Kuamar Maheshwari And Others
Counsel for Appellant :- Vinod Kumar,Amar Nath,Mohd. Ali
Counsel for Respondent :- B.K.Saxena,K.K.Saxena,S.N.Bhan
Hon'ble Jaspreet Singh,J.
1. Heard Shri Mohammad Ali, learned counsel for the appellant and Shri Utkarsh Srivastava, learned counsel for the contesting respondents no.1 and 2.
2. The instant second appeal arises out of concurrent judgment and decree passed by the trial court dated 09.02.1984 in Regular Suit No.408 of 1970 whereby the suit for the plaintiff for permanent injunction was dismissed and his Regular Civil Appeal No.98 of 1984 also met the same fate by means of judgment and decree dated 19.07.1986.
3. The record indicates that the instant second appeal was filed with delay, accordingly on the application under Section 5 of the Limitation Act, notices were issued. The record further reflects that the application for condonation of delay was allowed on 29.03.2005 and since thereafter the matter has been listed for admission. The paper book is available before the Court and in the aforesaid backdrop the Court has heard Shri Mohammad Ali, learned counsel for the appellant on admission.
4. Learned counsel for the appellant while vehemently pressing the aforesaid second appeal has submitted that the predecessor in interest of the appellant had instituted a suit for permanent injunction on the ground that he was the owner in possession of the property in question. The defendants were attempting to raise a boundary wall over the land belonging to the plaintiff which prompted the plaintiff to institute the suit for injunction bearing No.408 of 1970. It is further submitted that the plaintiff had clearly demarcated and given the boundaries of the property describing as Ahata no.4 of Khasra Abadi of 1862 in village Kondar, Ward Saadatganj, Lucknow with boundaries.
5. The aforesaid suit came to be contested by the defendants to dispute the title of the plaintiff and upon the exchange of pleadings, the trial court framed as many as ten issues. However, there were four main issues upon which the suit came to be contested and while dealing with the issue nos.1 and 2, the trial court recorded a finding that the plaintiff could not prove his possession or title over property in question. Since the suit was for permanent injunction, accordingly it came to be dismissed with the aforesaid findings which came to be assailed in an appeal which also met the same fate.
6. The solitary ground which has been raised as a substantial question of law by the learned counsel for the appellant is that the plaintiff had filed a document, an Intakhab of 1862 which was recorded in the name of great grand father of the appellant. This clearly indicated that the property vested with the predecessor in interest of the appellant and since that was nothing contrary to the said document, hence the ownership of the said property would continue with the successors which included the plaintiff.
7. It is further urged that number of witnesses were produced who categorically stated that the property in question belonged to the ancestors of the plaintiff and the trial court while dealing with the issues no.1 and 2 has merely considered the oral evidence but ignored the prime important document i.e. the Intakhab of 1862 which was the source of title and the document by which the property vested with the ancestors of the plaintiff. It is thus urged that for the aforesaid reason, this important aspect as well as the document has been ignored by the two courts which in itself is a substantial question of law and the appeal deserves to be admitted.
8. Shri Utkarsh Srivastava, learned counsel for the respondents no.1 and 2 while refuting the aforesaid submissions has urged that Intakhab of 1862 may be an important document but it looses its relevance on account of the fact that with the passage of time, two important legislation i.e. Oudh Rent Act and U. P. Tenancy Act which had an impact and had come into being and in terms thereof, it would still not give any vested right to the plaintiff. It is thus urged that in a suit for injunction which is based on the title hence it is for the plaintiff himself to show its title and in absence of proper title and possession, the suit must fail. Moreover, on the other hand, the defendants had already claimed the property belonging to them and in this light also the suit was not maintainable as the plaintiff was required to seek a declaration in light of the decision of the Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy and others (2008) 4 SCC 598. It is thus submitted that both the courts have recorded findings of fact which are not assailable in exercise of jurisdiction under Section 100 CPC, consequently no question of law arises and the appeal deserves to be dismissed.
9. The Court has heard learned counsel for the appellant and also perused the material on record.
10. In so far as the issue proposed for consideration by the learned counsel for the appellant is concerned, the entire contention rest around the document of 1862 Intakhab. Even if at all, the said document is taken into consideration but the fact remains that at the relevant time to which the said document belonged the Oudh Rent Act of 1882 was in operation. At that relevant time, the tenancy was not heritable. This change in the legislation came with the U.P. Tenancy Act of 1939. There is nothing on record nor it could be demonstrated by the learned counsel for the appellant that in the given circumstances how the property came to be vested with the ancestors during the period when under the Oudh Rent Act the tenancy was not heritable and then how it was treated when the U.P. Tenancy Act of 1939 came to an end. This fact apart, with the advent of the U.P. Z.A. & L. R. Act 1950, on the date of vesting the document which ought to have been filed have not been placed on record to indicate that on the date of vesting the plaintiff or his predecessor were ever recorded or in possession of the property in question. In this view of the matter, it is clear that merely the document of 1862 is not going to help the plaintiff and even if considered, is not going to vest any right unless the aforesaid could have been explained with proper chain of documents and evidence connecting the same which unfortunately has not been done.
11. Considering the other aspect of the matter regarding the evidences led by the witnesses that also pales into insignificance for the reason that the plaintiff himself could not establish his case and any amount of evidence of the defendants is not going to create title in favour of the person and even otherwise the plaintiff cannot take benefit of the weakness of the defence.
12. In view of the aforesaid, the Court has examined the finding recorded by the two courts and is satisfied that no question of law arises in the instant second appeal, accordingly the same is dismissed at the admission stage. The judgment and decree dated 09.02.1984 passed in Regular Suit No.408 of 1970 and 19.07.1986 passed in Regular Civil Appeal No.98 of 1984 is affirmed. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 4.8.2023
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