Smt. Jagrani vs Nagar Palika Lakhimpur Kheri And ...
2023 Latest Caselaw 7923 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- SECOND APPEAL No. - 336 of 1991
 

 
Appellant :- Smt. Jagrani
 
Respondent :- Nagar Palika Lakhimpur Kheri And Others
 
Counsel for Appellant :- H.S. Sahai,Madhav Srivastava,Uma Shankar Sahai
 
Counsel for Respondent :- Dheeraj Srivastava
 

 
Hon'ble Jaspreet Singh,J.

Heard Shri U. S. Sahai, learned counsel for the appellant. None has put in appearance on behalf of the respondents to argue the appeal though the name of Shri Dheeraj Srivastava is printed in the cause list who has also filed his Vakalatnama for the respondent no.1. In so far as the respondents no.2 and 3 are concerned, none has put in appearance.

Since the appeal is of the year 1991, accordingly the Court has heard the learned counsel for the appellant on the substantial questions of law which were formulated by this Court at the time admitting the appeal on 13.09.2019 which read as under:-

"(I) Whether the earlier suit of the plaintiff (Regular suit No.402/1986) having been decreed against the respondents Baldeo Prasad and Kalloo by the order passed in civil appeal No.172/87 and the said judgment had become final, the courts below could dismiss the plaintiff's suit without considering the legal effect of the earlier decree.

(II) Whether the judgment and decree passed in Regular Suit No.402/86 as finally decided in C.A.No.172/87 will not operate with res judicata and estoppel."

Shri U. S. Sahai, learned counsel for the appellant has primarily made submissions in support of the substantial questions of law so formulated and has urged that the two courts have erred in failing to consider that the appellant had filed a suit seeking a decree of permanent injunction and possession. The relief of possession was introduced during the pendency of the suit as 09.01.1989. The appellant was dispossessed from the property in question which compelled her to file an application for amendment which came to be allowed. Thus, on the date when the trial court decided the matter, two undisputed facts before the Court were that the plaintiff was in possession of the property in question and she had been dispossessed without due process of law at the behest of the defendants and as such under the aforesaid circumstances, the plaintiff was entitled to a decree of possession and having failed to decree the suit for the aforesaid relief. The trial court had severely erred in exercise of its jurisdiction.

It is further submitted that the matter was raised before the lower appellate court which has also failed to consider the aforesaid aspect including that prior to the institution of the present suit, the appellant had instituted Regular Suit No.402 of 1986 which came to be dismissed but in a first appeal bearing No.172 of 1987, the suit of the plaintiff came to be decreed and a specific finding was recorded that the plaintiff was in possession. Once the said finding had attained finality and it clearly established the possession of the plaintiff, then it was not in sound and proper exercise of jurisdiction for the trial court while dealing with Regular Suit No.25 of 1989 to hold that the earlier suit would operate as res judicata and the plaintiff has been non suited in the subsequent suit specially when the Nagar Palika Lakhimpur Kheri against whom the main relief was sought, was not a party.

Learned counsel for the appellant has further urged that even in the Regular Suit No.25 of 1989 from which the instant second appeal arises. There was an interim injunction prevailing in favour of the plaintiff and despite the same, the plaintiff was dispossessed illegally on 09.01.1989. The respondent no.1 did not have authority to take the law in its own hand and despite the interim injunction dispossessed the plaintiff and the courts below noticed this fact including that the plaintiff though was able to prove its possession yet failed to grant any decree for possession, accordingly the judgment and decree passed by the two courts is clearly erroneous and deserves to be set aside.

In order to appreciate the aforesaid submissions of the leaned counsel for the plaintiff-appellant, it will be necessary to notice the relevant facts giving rise to the instant appeal.

The plaintiff Smt. Jagrani had instituted a Regular Suit No.25 of 1989 (Jagrani Vs. Nagar Palika Lakhimpur Kheri and two others). The said suit was initially filed seeking a decree of permanent injunction with the averments that the property in question the details of which were mentioned in paragraph-1 of the plaint admittedly belonged to the respondent no.1 i.e. Nagar Palika Parishad. It was further pleaded that the plaintiff was in possession of the said Kothari for the last about 12 years and was paying rent to the Nagar Palika Lakhimpur Kheri who permitted the possession. It was also urged that the plaintiff was doing the business of selling wood from the said Kothari and it was alleged that the Nagar Palika had allotted the said Kothari to the plaintiff.

It was further pleaded that the defendants no.2 and 3 who are the private respondents no.2 and 3 before this Court were attempting to interfere in the possession of the plaintiff which compelled her to file Regular Suit No.402 of 1986 (Jagrani Vs. Baldev Prasad and others) which came to be dismissed by the Court of 4th Additional Munsif by means of judgment and decree dated 13.11.1987. The plaintiff had preferred a Regular Civil Appeal No.172 of 1987 which came to be allowed on 29.09.1988 and the respondents no.2 and 3 were restrained from creating any interference in the possession of the plaintiff in respect of the disputed Kothari.

The cause of action as indicated in Regular Suit No.25 of 1989 was that the defendant no.1 in collusion with the defendants no.2 and 3 illegally planned to dispossess the plaintiff from her Kothari and in the aforesaid circumstances a decree for permanent injunction was sought. Subsequently by means of amendment it was incorporated in the plaint that on 09.01.1989 the defendant no.1 in collusion with the defendants no.2 and 3 illegally dispossessed the plaintiff from her Kothari and accordingly after incorporating the aforesaid factual aspect, a relief for possession over the Kothari was also sought by the plaintiff.

The suit came to be contested by the respondents wherein the plea of the Nagar Palika was that the plaintiff was not in possession of the disputed property. It was also stated that the plaintiff had not paid the appropriate court fee and in absence of notice under Section 326 of the Nagar Palika Adhiniyam, the said suit was not maintainable. The respondents no.2 and 3 filed their separate written statement wherein they denied the allegations in the plaint and had also raised a plea that the plaintiff was not the owner nor she was in possession of the Kothari.

Upon exchange of the pleadings, the trial court framed four issues and primarily issues no.1 and 2 where issues upon which parties contested the matter. The plaintiff examined herself as P.W.1 and Raj Kumar son of Vashudev Lal was examined as P.W.2. Murli son of Banwari was examined as P.W.3 and Harish Kumar was examined as P.W.4. The defendants no.2 and 3 did not contest the matter and the suit proceeded ex parte against them whereas on behalf of Nagar Palika Lakhimpur Kheri Bhagwan Prakash appeared as D.W.1.

The trial court while dealing with the issue no.1 as to whether the plaintiff i.e. allottee in possession at the time of the institution of the suit held that the plaintiff had failed to establish her allotment and even though she was successful in establishing her possession but in view of the subsequent event as admitted to the plaintiff she was dispossessed on 06.01.1989, hence not entitled to the relief.

While dealing with the issue no.2 which was to the effect as to whether the plaintiff has been dispossessed during the pendency of the suit, this was decided with the finding that as the plaintiff admitted that she had been dispossessed, accordingly she ought to have initiated proceedings under Order 39 Rule 2-A CPC. With the aforesaid finding the trial court dismissed the suit by means of judgment and decree dated 14.05.1990 holding that in absence of the possession the relief of permanent injunction cannot be granted and since the plaintiff could not establish that she was either the owner or an allottee or a licencess hence the relief of possession was also denied.

The plaintiff being aggrieved against the judgment and decree passed by the trial court preferred a regular civil appeal under Section 96 CPC bearing No.42 of 1990 which also came to be dismissed by means of judgment and decree dated 16.08.1991 and being aggrieved against the concurrent judgment and decree, the instant appeal has been preferred.

In the aforesaid factual backdrop, on considering the averments and submissions of the learned counsel for the appellant, this Court finds that the contention raised by the learned counsel for the appellant is misconceived for the reason that the earlier suit bearing No.402 of 1986 was a suit between the plaintiff Jagrani and Balev Prasad and Kalloo. Even if at all the said suit came to be dismissed and further the appeal under Section 96 CPC bearing No.172 of 1987 came to be allowed. The effect would be that the suit of injunction as filed by the plaintiff bearing No.402 of 1986 would be against Baldev Prasad and Kalloo. Admittedly in the said suit, the Nagar Palika Lakhimpur Kheri was not a party and the said finding or the injunction granted in the said suit could not be extended against the Nagar Palika.

In so far as the effect of the earlier suit and whether it would operate as res judicata is concerned, the same can only be between the same party and since the Nagar Palika was not a party and the private respondents no.2 and 3 did not claim their rights from Nagar Palika, hence the said judgment and decree could not operate as res judicata against the Nagar Palika. The entire matter can be looked from another angle as well.Even though the earlier suit bearing No.402 of 1986 came to be decreed by the lower appellate court in Civil Appeal No.172 of 1987 but the fact remains that the said injunction could not be made binding on Nagar Palika. The right of possession of the plaintiff could be good against the whole world but not against the true owner. In the instant case which emanates from Regular Suit No.25 of 1989 as noticed above that the plaintiff has clearly stated in paragraphs no.1 and 2 of the plaint that the said Kothari was on the land belonging to Nagar Palika who had allotted the same to the plaintiff and that she had been paying money/rent to the Nagar Palika Parishad and in the aforesaid circumstances, she was entitled to a decree in the nature of permanent injunction restraining the defendants from illegally dispossessing the plaintiff. It is also admitted case of the plaintiff that she was dispossessed by the Nagar Palika in collusion with the defendants no.1 and 2 on 09.01.1989 which prompted her to amend her claim and seek a decree of possession.

At this stage, it will be relevant to notice that the plaintiff had the option of either amending the claim and seek decree of possession on the basis of the pleadings made in the plaint or she could have instituted another proceedings in terms of Section 6 of the Specific Relief Act, 1963 where she was not required to establish her title and the only requirement would have been to establish her possession on the date of her dispossession. The plaintiff consciously amended the plaint and sought a relief of possession. This necessarily implies that the plaintiff in order to successfully the claim the relief possession must establish that she was in lawful possession as an allottee and had been paying rent to the Nagar Palika and despite the same the Nagar Palika without legal basis dispossessed the plaintiff.

This Court finds that in the instant case the plaintiff miserably failed to establish the aforesaid plea raised in plaint. The plaintiff was not claiming the relief on the basis of possession in terms of Section 6 of the Special Relief Act rather her claim was based on her rights to occupy the Kothari on the basis of the allotment made by the Nagar Palika. As the plaintiff failed to establish her right as no evidence regarding the allotment of the payment of rent/licence fee to the Nagar Palika could be established the only conclusion that can be drawn is that the plaintiff was occupying the said Kothari which admittedly belonged to the Nagar Palika without any lawful or legal basis. The Nagar Palika removed the possession of the plaintiff and in absence of any lawful basis due established the plaintiff could not claim the relief of possession.

It is also to be noticed that the learned counsel for the appellant has urged that there was an interim order subsisting in favour of the plaintiff but there is nothing on record to indicate that the plaintiff upon being dispossessed on 09.01.1989 despite the interim order had raised any such objection or proceedings. Even if at all the plaintiff was illegally dispossessed at the behest of the defendants no.2 and 3 and the plaintiff claimed the benefit of the decree passed in Civil Appeal No.172 of 1987, even then the plaintiff could have at best sought the execution of the injunction decree against the defendants no.2 and 3 as provided under Order 21 Rule 32 CPC, however, even that has not been done. There is nothing on record to indicate that the plaintiff was dispossessed without due process and even otherwise merely because there was an earlier decree wherein the possession was noticed but that would as already stated above operate only against the defendants no.2 and 3 and not the Nagar Palika. The defendant no.1 who was not a party to the earlier suit hence the said finding in the earlier suit cannot operate as res judicata in the present suit. It was the specific defence of the Nagar Palika that the plaintiff was not in possession, accordingly this aspect of the matter has been considered both by the trial court as well as the lower appellate court and the findings have been affirmed which are pure findings of fact.

Accordingly, this Court does not find that there is any merit in the appeal. It is, accordingly, dismissed. In the facts and circumstances, there shall be no order as to costs.

Record of the trial court be returned expeditiously.

Order Date :- 20.3.2023

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