Nagar Nigam, Agra vs Laxmi Narayan Sharma And 2 Others
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Allahabad High Court

Nagar Nigam, Agra vs Laxmi Narayan Sharma And 2 Others on 22 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:11142
 
Court No. - 36
 

 
Case :- SECOND APPEAL No. - 1101 of 2024
 

 
Appellant :- Nagar Nigam, Agra
 
Respondent :- Laxmi Narayan Sharma And 2 Others
 
Counsel for Appellant :- Arpit Agarwal,Shyam Mani Shukla
 
Counsel for Respondent :- Manoj Yadav
 

 
Hon'ble Kshitij Shailendra,J.
 

1. Heard Sri Arpit Agarwal, learned counsel for the defendant-appellant and Sri Rakesh Kumar, learned counsel for the plaintiffs-respondents.

2. The appellant was defendant no. 2 in the civil suit that was filed claiming a decree for permanent prohibitory injunction regarding property covered by Khasra No. 207. The suit has been decreed by the trial court and civil appeal arising therefrom has been dismissed.

3. It is significant to note that there was two defendants in the suit; the State of U.P. being defendant no. 1 and appellant Nagar Nigam being defendant no. 2. The State of U.P. neither preferred first appeal nor has come in second appeal. It cannot come in second appeal for the reason that it did not assail the judgment of the trial court before the district court. Therefore, the challenge made to the impugned decree has to be analyzed at the instance of defendant no. 2 (appellant) only.

4. Brief facts of the case are that placing reliance upon Sirdari rights acquired on the basis of an allotment made by the Land Management Committee on 07.03.1972 and a Will executed by Sirdar in favour of his son and another Will executed by the said beneficiary in favour of the plaintiff-respondent, suit for injunction was filed and cause of action was alleged that the defendants were interfering in the plaintiff's possession. The lease/patta as well as two Wills were brought on record. The trial court has granted a decree to the effect that the defendant-appellant shall not interfere in the property covered by plot no. 207M measuring 2 Bigha, in which a room and boundary wall exists and without following due process of law they will neither dispossess the plaintiff nor would they demolish the existing constructions.

5. Challenging the impugned decree, following submissions have been advanced by the learned counsel for the appellant :-

"(a) The basis of the claim being Patta dated 07.03.1972, by which Sirdari rights were created in favour of Karelabaz, the lessee was not competent to execute a Will and, hence, entire claim of the plaintiff has no basis.

(b) No relief of declaration of title was claimed in the suit and since the plaintiff was not a recorded tenure holder, the suit was not maintainable before the civil court.

(c) Two Wills relied upon by the plaintiff were not proved in accordance with the provisions of Section 68 of the Evidence Act.

(d) The courts below have read the version contained in the written statement, but since an amendment application 112Ka was filed during the course of trial which was rejected by the trial court against which a civil revision is pending before this Court, the prayer for amendment should be seen by this Court as the challenge is to the final decree in which validity of interlocutory orders passed during the course of trial can be examined.

(e) On account of execution of Wills by persons who were not competent, the land would vest in the State of U.P. as per the provisions of U.P.Z.A. & L.R. Act and, hence, the plaintiff has no title to the property."

6. Per contra, Sri Rakesh Kumar submits that the State of U.P. not being appellant either before the district court or before this Court, the appellant Nagar Nigam cannot go beyond pleadings contained in its written statement where a stand was taken that defendant no. 2 appellant has no concern with the property of the plaintiff and that title over plot no. 207M was clearly admitted by the appellant. He further submits that proof of Wills was not required in the present case and no one raised a challenge to the Wills. Further submission is that it was not necessary to seek declaration of rights as the suit was based upon decades old settled possession pursuant to the lease, first Will and the second Will. In support of his submissions, reliance has been placed upon a recent decision of the Supreme Court dated 06.01.2025 passed in Civil Appeal No. 159 of 2025; Krushna Chandra Behera & Ors. vs. Narayan Nayak & Ors.

7. Having heard learned counsel for the parties, I find that a party cannot go beyond the pleadings made before the trial court and any evidence led by the parties has to be seen in the light of its pleading. Though it is true that certain entries in the revenue records depict that some area of Khasra No. 207M is recorded as Banjar, as far as appellant is concerned, it admitted title of the plaintiff in his written statement. The pleading was that under the garb of claiming rights over property of Khasra No. 207, the attempt of the plaintiff was to encroach upon the land of Khasra No. 208 which allegedly belongs to the appellant. Notably, the Khasra No. 208 is recorded as Pokhar in the revenue records.

8. In view of the above, even if this Court, for the time being, ignores the admission of plaintiff's title as contained in the written statement, it has to see as to whether the plaintiff succeeded to establish its lawful possession over the property so as to justify grant of decree of injunction.

9. Admittedly, no challenge was made to the lease or either of two Wills. Even factum of possession was not denied by any of the respondents. Therefore, in this background of facts, if the submission of Sri Arpit Agarwal to the effect that Sirdar was not competent to execute the Will or the Will was not proved in accordance with law is examined, the Court is of the view that requirement of proving a Will arises when a dispute is raised as regards to its execution. Such a dispute at the instance of a third party, without there being a challenge or a dispute regarding execution, cannot be examined as per strict parameters of Section 68 of the Evidence Act. The Court may not forget that it is not a lis regarding challenge to a registered or unregistered document, rather it is a simpliciter case of settled possession. Even if the plea of appellant is examined that on account of alleged unlawful execution of Will by Sirdar, the property would vest in the State Government, the appellant not being State Government and, in fact, the State Government having acquiesced to the decree having not raised a challenge before the first appellate court, such acquiescence would amount to waiver and relinquishment of a legal right, if any, vested in the State Government to take action.

10. In this view of the matter, the appellant Nagar Nigam cannot take aid of alleged rights vested in the State Government, when the State Government never came forward to raise a challenge. As a matter of fact Nagar Nigam cannot hold brief of Government to non-suit plaintiff and assume vesting of property in itself.

11- At the cost of repetition it is observed that suit was filed on the basis of decades old settled possession and it has come on record that the property in dispute was numbered as 43/49/BG/207 in the records of the Nagar Nigam and that the assessment records as well as the municipal tax receipts were also brought on record. The trial court has also observed that defendant no. 2 has not come up with a specific defence contrary to the documentary evidence led by the plaintiff as regards entry in the records of the Nagar Nigam itself.

12. The Supreme Court in Krushna Chandra Behera (supra) was dealing with the case where simpliciter suit for injunction was filed based upon possession and the High Court decided the lis against the plaintiff. The Supreme Court, in 18th paragraph, observed that if the defendants did not dispute the title of the plaintiffs then the suit should not fail only on the ground that the matter has been filed only for injunction simpliciter and no main relief in the form of declaration has been prayed for. The Apex Court has also observed that absolutely new case is sought to be raised as regards aspect of possession is concerned and that the High Court had not said a word about who is in possession over the property.

13. In view of the above discussion, in the facts of the present case, it is found that entry in revenue records in one way or other and contrary entries in the municipal records of the appellants Nagar Nigam in favour of the appellant, in absence of challenge to the same by the State of U.P. or even by the Nagar Nigam, clearly establishe lawful possession of the plaintiffs-respondents over the property in dispute. Claim for declaration either before the civil court or before the revenue court, in the facts of the case, was not required and, hence, the plaintiffs- respondents cannot be non-suited on this ground also.

14. As regards the submissions based upon the amendment application are concerned, this Court finds that written statement was sought to be amended taking a plea that Nagar Nigam is the owner in possession having every right to remove encroachment. The application was rejected by the trial court on 08.05.2019 and revision against the order is said to be pending before this Court. Irrespective of the fact that the revision has rendered infurctuous, even if the argument that the validity of the order dated 08.05.2019 can be seen by this Court and at this stage the appellant may be permitted to amend the written statement, this Court is of the view that as per Section 105(1) of the C.P.C., where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. The entire memorandum of first appeal as well as the instant second appeal, does not contain any ground of challenge to the order dated 08.05.2019 passed by the trial court rejecting the amendment application. Therefore, the written statement filed initially shall be read in these proceedings. As observed above, the appellant having admitted the title and possession of the plaintiff over Gata No. 207 and having come with a clear stand that appellant has no concern with the property but is attempting to protect the encroachment made over adjoining property no. 208 about which there was no lis, this Court is of the considered view that validity of order dated 08.05.2019 cannot be examined by this Court in second appellate jurisdiction.

15. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311, the Supreme Court came to the conclusion that the finding reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court has held that the High Court in its jurisdiction under Section 100 C.P.C. is not justified in interfering with the findings of fact and that it is the obligation of the courts of law to further clear intendment of the legislature and not frustrate it by excluding the same and where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.

16. Similar view has been taken in Kondiba Dagadu Kadam vs Savitribai Sopan Gujar and others, (1999) 3 SCC 722 by observing that disturbance in findings of fact would be contrary to limitations imposed by section 100 C.P.C. The Supreme Court again reminded in Commissioner, Hindu Religious & Charitable Endowments vs. P. Shanmugama (2005) 9 SCC 232 that the High Court has no jurisdiction in second appeal to interfere with the findings of fact. The Apex Court, in State of Kerala v. Mohd. Kunhi (2005) 10 SCC 139 reiterated the same principle by observing that by such interference, the High Court would go beyond the scope of Section 100 of the Code of Civil Procedure.

17. In Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Supreme Court observed that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

18. The view taken in the aforesaid decisions has been reiterated by the Apex Court in Gurdev Kaur and others vs. Kaki and others, 2007 (1) SCC 546.

19. Recently, the Supreme Court has seriously condemned the approach of the High Courts to entertain a challenge even when no substantial question of law is involved and appeals are admitted on inappropriate questions which cannot be said to be substantial questions. The proposition has been laid down in Civil Appeal Nos.14138- 14139 of 2024, Jaichand (dead) through LRs and others Vs. Sahnulal and another, decided on 10.12.2024.

20. Consequently, no substantial question of law arises for consideration.

21. The appeal fails and is, accordingly, dismissed under Order 41 Rule 11 C.P.C.

Order Date :- 22.1.2025

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