Syed Mohammad Ali vs District Judge / Special Judge S.C./ ...
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Allahabad High Court

Syed Mohammad Ali vs District Judge / Special Judge S.C./ ... on 18 July, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:41301
 
Court No. - 8
 

 
Case :- SECOND APPEAL No. - 178 of 2011
 
Appellant :- Syed Mohammad Ali
 
Respondent :- District Judge / Special Judge S.C./ S.T. Act Court No.4
 
Counsel for Appellant :- Vijay Mishra,Anjani Kumar Dwivedi
 
Counsel for Respondent :- C S C
 

 
Hon'ble Jaspreet Singh,J.
 

1. Heard the learned counsel for the appellant and Shri Hemant Pandey learned counsel for the State-respondent.

2. The instant second appeal has been preferred assailing the concurrent judgment and decree dated 31.05.2007 passed by the Civil Judge, Musafirkhana, District Sultanpur in Regular Suit No.577 of 2004 claiming relief of permanent injunction and compensation which was dismissed by the trial court.

3. The appellant preferred an appeal under section 96 CPC bearing Civil Appeal No.04 of 2008 which also came to be dismissed by means of judgment and decree dated 15.04.2011 and it is in the aforesaid fashion that the appellant is before this Court.

4. The primary submission made by the learned counsel for the appellant is that the suit for permanent injunction was filed before the trial court with the specific pleadings that the plaintiff was the owner in possession of the property in question which as per the appellant was a shop from where he used to sell sweetmeats. It was the case of the plaintiff-appellant that the defendants were illegally interfering in his peaceful possession and were also threatening to dispossess him and in such circumstances, the suit came to be filed.

5. The suit came to be contested by the defendants-State wherein it was specifically stated that the land did not belonged to the plaintiff apart from the fact that the said land was required for road widening and in such circumstances the plaintiff is not entitled to any injunction.

6. Upon the exchange of the pleadings, the trial court framed as many as 14 issues. Primarily, issue nos.1, 7, 8, 9, 10, 11 and 13 were all relating to maintainability of the suit for various reasons, inter alia, being barred by Section 49 of the U.P. Consolidation of Holdings Act 1953, barred by Section 331 of the U.P. Z.A. & L.R. Act, 1950 as well as from the provision of the U.P. Road Side Land Control Act and Section 80 CPC and 106 Panchayati Raj Act.

7. Parties led evidence both oral and documentary and the trial court in so far as the issue of maintainability for the various reasons as noticed above is concerned, rule in favour of the plaintiff. However, issue no.1 and issue no.14 were ruled against the plaintiff and the suit came to be dismissed. The plaintiff preferred an appeal which also met the same fate.

8. It is in the aforesaid backdrop that the submissions of the learned counsel for the appellant is that both the courts have committed a grave error in failing to consider that the plaintiff had not sought any right in so far as the land in question is concerned. His case simplicitor was that he has been granted a license by the Zila Parishad and he had a shop from where he was selling sweetmeats. It is in the aforesaid context, once the plaintiff had the possession as well as was authorized to sell the sweetmeats, he could not be dispossessed without due process of law and in such circumstances, the possession also was not disputed. Accordingly, the Trial Court as well as the First Appellate Court committed grave error in dismissing the suit as well as the appeal.

9. It is also urged by the learned counsel for the appellant that though the plaintiff had claimed relief in respect of compensation which was not considered coupled with the fact that the plaintiff had also moved an application under Order 39 Rule 1 and 2 CPC during the trial stage, which came to be dismissed and appeal also met the same fate which prompted the plaintiff to approach a Co-ordinate Bench of this Court by filing a writ petition bearing No.2310 (M/S) of 2000.

10. It is urged that the Co-ordinate Bench vide order dated 08.05.2006 had also observed that in case if the petitioner (appellant herein) made a representation to the competent authority for the payment of any compensation, the same shall be considered in accordance with law.

11. It is urged that even this direction/observations of the Co-ordinate Bench of this Court was not considered and thus the impugned judgment and decree suffer from vice of being arbitrary coupled with the fact that the two courts did not consider the controversy in the correct prospective.

12. It is also submitted that though the plaintiff had claimed a relief of compensation but no appropriate issue was framed, which caused grave injustice to the plaintiff as he was prevented from leading evidence in respect of the issue of compensation and at least it materially affected the trial. Accordingly, the two judgments and decrees deserve to be set aside.

13. Learned Standing Counsel, on the other hand, has pointed out that the suit filed by the plaintiff was primarily on the basis that he was the owner in possession. Admittedly the plaintiff did not have a right in so far as the land is concerned. However, even if the right claimed over the shop in question in order to get an injunction yet the plaintiff had to establish the three golden ingredients of prima facie right and title balance of convenience and irreparable injury. Merely because his shop is present at the disputed site and the land belonged to the State and it was required for the purposes of road widening, then the plaintiff could not claim an injunction against the rightful owner and in such circumstances, both the trial court as well as the first appellant court have declined to interfere which is in accordance with law. Accordingly, the instant second appeal does not raise any question much less a substantial question of law and the appeal deserves to be dismissed at the admission stage itself.

14. The Court has considered the rival submissions and also perused the material on record.

15. As far as the first submission raised by the counsel for the appellant is concerned, the record would indicate that the documents which have been filed by the plaintiff is only in respect of his right to do business. The license which has been referred to both by the trial court and the first appellate court, is only in context with a license to sell sweetmeats. It is not given to the plaintiff for any particular land or any particular shop.

16. The record further indicates that the license was for one year which had to be renewed year after year. However, on the date of the institution of the suit or thereafter there is no material to indicate that the said license had been extended till the time this second appeal was filed or even till today.

17. There is another issue which could not be disputed by the plaintiff and i.e. he does not claim any right over the land. In case if he did not claim any right over the land, he could not maintain a simplicitor suit for injunction against the true owner which is now well settled. It will also be relevant to notice that once the plaintiff did not claim rights over the land, then at best whatever structure was present (referable to the alleged shop of the appellant) the appellant was at liberty of removing it and there is no patent threat to the said act of removal of the structure. Thus, this aspect which has been considered by the two courts and it does not require any interference from this Court.

18. As far as the second submission regarding compensation is concerned, needless to say that they were no pleadings nor any evidence led by the plaintiff regarding that. Another undisputed fact is that the concept or the plea of compensation could only had matured in a right in favour of the plaintiff, if at all, he would have been wrongly dispossessed or he could have suffered any injury which may have given rise to any right to claim compensation. Since there was no pleadings and as per the plaintiff he still continues to remain in possession meaning thereby that till date there is no cause of action for claiming the said relief, hence even if it has not been considered by the two courts it cannot come to the aid of the plaintiff for assailing the judgments impugned in the instant appeal on the aforesaid ground.

19. The third issue raised by the counsel for the appellant that appropriate issues were not framed also does not have any merit for the reason that in case if the plaintiff had any pleadings (in the instant case there were none) he could have made an application for framing additional issue, but there being no pleadings at all and thus the submissions pales into insignificance.

20. Assuming there were pleadings that the issue was not framed by the trial court, there is nothing to indicate that the plaintiff exercise his rights in terms of Order 14 Rule 5 CPC for getting an additional issue framed. No such other endeavour was made even before the first appellate court and this fact is not disputed. Thus, the last submission also does not find merit.

21. No other pointed was pressed. Thus, for all the aforesaid reasons, this Court is of the clear opinion that the findings recorded by the two courts are concluded by concurrent findings of fact which are based on evidence on record.

22. Accordingly, this Court does not find that there is any merit in the appeal nor it raises any substantial question of law, hence it is dismissed at the admission stage itself. Costs are made easy.

Order Date :- 18.7.2025

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