Allahabad High Court
Gajraj Singh vs Naresh And Others on 11 January, 2023
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- SECOND APPEAL No. - 152 of 2011
Appellant :- Gajraj Singh
Respondent :- Naresh And Others
Counsel for Appellant :- Manish Dev Singh
Counsel for Respondent :- R.K. Shukla,A. Kumar,Sanjay Mishra
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the appellant.
This is a plaintiff's appeal challenging the judgment and decree dated 23.9.2009 passed by the Civil Judge (Junior Division), Garkmukhteshwar, District Ghaziabad dismissing Original Suit No. 103 of 2007 (Gajraj Singh vs. Naresh & Others) as well as the judgment and decree dated 20.11.2010 passed by the Additional District Judge, Court No.14, District Ghaziabad dismissing Civil Appeal No. 133 of 2009 filed against the decree of the trial court.
Original Suit No. 103 of 2007 was filed for a decree of permanent prohibitory injunction restraining the defendants - respondents from interfering in the possession of the plaintiff - appellant over Plot No. 356 (area 0.4220 hectares) and Plot No. 357 (area 0.8485 hectares).
The appeal vide order dated 1.3.2011 passed by this Court was admitted on the following substantial questions of law : -
"1. Whether the courts below were legally justified in dismissing suit of plaintiff / appellant on wholly perverse and unwarranted facts, inasmuch as relief in plaint was confined only to khasra plot no. 356 having an area of 0.4229 hectare and not relating to khasra plot no. 357 ka as observed by the concerned trial court while dealing with issue no.1?
2. Whether the courts below were legally justified in dismissing the suit of plaintiff / appellant in not reckoning into consideration provisions of Section 195 of the U.P. Zamindari Abolition and Land Reforms Act inasmuch as defendants no.1 and 2 claimed their rights on the basis of alleged agricultural lease deed executed in year 1996 qua khasra plot no. 356 and which is admittedly not a Gaon Sabha land?"
The claim of the plaintiff was that he was the Bhumidhar of the suit property and in possession of the same. The claim of the plaintiff was contested by the defendants - respondents stating that they were in possession of the suit property by virtue of the same having been allotted to them by the concerned Gaon Sabha. The trial court after considering the evidence filed by the parties dismissed the suit after recording a finding that the possession of the plaintiff over Plot No. 356 was not proved. Regarding Plot No. 357, the trial court recorded a finding that the plaintiff had not produced any document, including revenue records, showing his title over Plot No. 357 and had produced only the revenue records relating to Plot No. 357-Ka. Consequently, the suit was also dismissed for Plot No. 357-Ka. The aforesaid findings have been affirmed by the lower appellate court.
I have considered the argument of the counsel for the appellant and perused the lower court records.
The revenue records indicate that Plot No. 356 was Minzumla number. Part of Plot No. 356 was entered in the name of the plaintiff and parts of the same were also entered in the name of defendant nos. 1 and 2 as well as in the name of State Government.
A perusal of the lower court records indicates that in his testimony, the plaintiff witness no. 2 had testified that the land of the plaintiff was being used for agricultural purposes by defendant nos. 1 and 2. In his cross-examination, the plaintiff witness no. 2 has categorically stated that the defendant nos. 1 and 2 were using the same land for agricultural purposes which, previously was occupied by the plaintiff.
In view of the fact that the plaintiff was not in possession of the suit property, no permanent prohibitory injunction could have been granted to the plaintiff. The plaintiff had the remedy to file a suit for eviction of defendant nos. 1 and 2 in the revenue court under Section 209 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950.
Regarding Plot No. 357-Ka, the lower court records support the recital in the judgment of the trial court that no revenue records or any other document proving the title of the plaintiff over Plot No. 357-Ka was filed by the plaintiff in the trial court.
The findings recorded by the trial court regarding Plot No. 356 and regarding the possession of the defendants over the suit property are findings of facts based on evidence on record. There is no perversity in the aforesaid findings.
The counsel for the appellant has drawn the attention of the Court to the testimony of plaintiff witness no. 2 to argue that there were contradictions in the testimony of plaintiff witness no. 2 regarding possession of parties over the suit property.
It has been argued that a reading, as a whole, the testimony of plaintiff witness no. 2 proves the plaint case and indicates that the plaintiff was in possession of the suit property. As noted earlier, the findings recorded by the trial court are findings of facts based on assessment of relevant evidence and merely because two views are possible on the same evidence, the courts do not interfere under Section 100 of the Code of Civil Procedure, 1908.
In light of the aforesaid, no relief could have been granted to the plaintiff in relation to either Plot No. 356 or 357-Ka.
In light of the observations made above, no error has been committed by the courts below in not considering Section 195 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950.
The substantial questions of law framed by the Court vide its order dated 1.3.2011 are answered accordingly.
The appeal lacks merit and is, hereby, dismissed.
Order Date :- 11.1.2023
Satyam
