Allahabad High Court
Pramod Kumar Tiwari vs Smt. Shail Kumari Gupta on 18 November, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:205546
HIGH COURT OF JUDICATURE AT ALLAHABAD
SECOND APPEAL No. - 255 of 2015
Pramod Kumar Tiwari
.....Appellant(s)
Versus
Smt. Shail Kumari Gupta
.....Respondent(s)
Counsel for Appellant(s)
:
Arvind Srivastava, Ashok Kumar Pandey, M.D. Misra, R.C. Shukla
Counsel for Respondent(s)
:
Pradeep Kumar Tripathi, Ved Prakash Mishra
Along with :
1.
Second Appeal No. 166 of 2015:
Pramod Kumar Tiwari
Versus
Kanpur Development Authority Thru. Sec. and Anr.
Court No. - 36
HON'BLE ROHIT RANJAN AGARWAL, J.
1. These two connected second appeal filed under Section 100 of CPC arise out of a common judgment dated 12.11.2014 passed in Civil Appeal No. 155 of 2009 and 127 of 2012 arising out of judgment and decree dated 31.10.2009 passed in Original Suit No. 1779 of 2005. This second appeal was admitted on 11.02.2015 on following substantial question of law:- "Whether the Lower Appellate Court can pass a judgment and decree of reversal without setting aside all the findings recorded by Trial Court and that too in absence of any written statement of the contesting party?"
2. Facts, leading rise to filing of the present appeal, are that a lease deed in favour of appellant was executed by Kanpur Development Authority (hereinafter called as "KDA") on 14.11.1973 in respect of two plots, one measuring 356 square yard and the other 60 square yard. The possession was handed over to appellant. KDA took 60 square yard of land so leased out to appellant and allotted the same to defendant no. 2. The defendant no. 2, thereafter, made construction over the said land. Plaintiff filed Original Suit No. 1779 of 2005 before court of Civil Judge (Senior Judge), Kanpur Nagar seeking relief of mandatory injunction against defendant no. 1 in respect of 60 square yard of land of Plot No. 93, Block- X1, Scheme, Second Krishnapuram, Kanpur Nagar. Kanpur Development Authority which was arrayed as defendant no. 1 did not file its written statement and defendant no. 2, Shail Kumari, the subsequent allottee filed its written statement and contested the suit. The trial court framed following issues:- "1 . ???? ???? ?? ??? ???? 2 ???? 2 ??? ??? ??? ?? ????? ???
2 . ???? ??????????? ? -1 ?? ???? ?? ????? ???- 93 ????? ???? -1 , ?????, ??????? ??????????, ?????? ???, ???? 416 ?????? ?? ?????? 14.11.73 ?? ??? ??? ????????? ???? ??, ??? ??? ?? ?????? ?
3. ???? ????????? ??? 1 ?? ???? ?? ????? ??? 60 ?????? ??? ?? ???????? ????? ?? ???? ??????? ??? ???? ??, ??? ??? ?? ?????? ?
4. ???? ????????? ?? ? 1 ??????? ?? ???? ?? ????? ?? ??? ??? ???, ?? -1 /32 ?????????? ?? ?? , ?? ???????? ?? ?? ????? ???? ???? ????? ?? ?
5. ???? ??? ??? ???????? ?? ???????? ?? ??? ???????? ???
6. ???? ??? ?????? ?? ???? ?? ??????? ?? ?
7. ???? ????????? ?? ? -1 ?????? ????????? ?????? -2 ?? ?????? ?????? ????????? ?? ??????? ??? ?????? - ?? -1 /32 ??????????, ?????? ??? ?????? ???? ??? ?"
3. Issue No. 2 was in regard as to whether KDA had executed a lease deed in favour of plaintiff on 14.11.1973 in respect of 416 square yard of land or not. The trial court held that lease deed in respect of 416 square land was executed in favour of plaintiff by KDA. Issue No. 3 was in regard whether 60 square yard of land has been occupied by KDA or not. The finding returned by trial court was that said 60 square yard of land so leased out to plaintiff was taken by defendant no. 1 and allotted to defendant no. 2. Issue No. 4 was whether any construction made over land of plaintiff was illegal or not. The trial court found that the plaintiff being the original allottee and lease deed having been executed, KDA had no occasion to allot the said land in favour of defendant no. 2 and the construction so made was illegal. On the basis of issue so decided, the suit filed by plaintiff was decreed on 31.10.2009. Against the said judgment, two civil appeals were filed. Civil Appeal No. 155 of 2009 was filed by defendant no. 2, Shail Kumari while Civil Appeal No. 127 of 2012 was filed by KDA. Both the appeals were connected, heard and decided by a common judgment.
4. The first appellate court framed following point of determination:- "(1) ???? ??? ???-1779 /2005 ???????? ????? ?? ???????? ?? ????? ???
(2) ???? ??? ???????? ?????? ????? ???? ?????? ????? ??? ???????? ????? ?? ?????? ???? ???"
5. The first point of determination was decided in favour of plaintiff while deciding second point of determination so framed, the first appellate court found that in the interest of justice, the decree of mandatory injunction cannot be carried out and modified the decree of trial court to the extent that plaintiff was entitled to value of the land as per circle rate from the date of institution of the suit along with 7% interest from defendant no. 1, KDA and by judgment dated 12.11.2014, the decree of trial court was modified by first appellate court. Against the judgment of first appellate court, two second appeals have been preferred by plaintiff-appellant being Second Appeal No. 255 of 2015 and 166 of 2015. Both the appeals are connected, heard and decided by a common order with the consent of counsel for the parties.
6. Sri Ashok Pandey, learned counsel appearing for plaintiff-appellant submitted that the decree of trial court has been confirmed by appellate court as far as execution of lease deed in respect of 416 square yard of land is concerned which was executed by KDA in favour of plaintiff on 14.11.1973. He further submits that the first appellate court had only modified the decree of trial court to the extent that relief of mandatory injunction has been converted into relief for payment of damages by KDA on the basis of circle rate in respect of 60 square yard of land along with 7% interest from the date of institution of suit. According to him, KDA is ready to pay the amount as per circle rate of 2005 while the plaintiff is entitled for the payment at the present circle rate as the amount was not deposited pursuant to decision of first appellate court by the authority in the year 2014.
7. Sri Pradeep Kumar Tripathi, learned counsel appearing for KDA states that his client has nothing much to say except the fact that they are ready to pay the amount as directed by first appellate court modifying the decree of trial court and they are also ready to pay the circle rate in respect of 60 square yard of land along with 7% interest from the year 2005 which is the date of institution of suit.
8. Sri Ved Prakash Mishra, learned counsel appearing for defendant-respondent no. 2, Shail Kumari submits that he has no objection in case payment is made by KDA to the appellant in respect of 60 square yard of land which has been allotted to his client subsequently.
9. I have heard respective counsel for the parties and perused the material on record.
10. The substantial question of law framed earlier was as to whether the lower appellate court was correct in reversing the decree of trial court without setting aside the finding in absence of any written statement on behalf of defendant no. 1 i.e. KDA.
11. This Court after hearing the matter and perusing the material on record finds that much water has flown and the appellant is ready to accept the cost of 60 square yard of land which has already been taken by KDA illegally and allotted to defendant no. 2, Shail Kumari. The first appellate court had modified the decree of mandatory injunction to decree of payment of damages by KDA.
12. Looking to the fact that already 20 years have elapse since litigation is going on between the parties and original lease deed is of the year 1973, justice requires that the matter should be settled amicably between the parties who are also interested in getting the matter settled. Thus, the defendant-respondent no. 1 i.e. KDA is hereby directed to pay the amount as decreed by first appellate court to the plaintiff within a period of one month in respect of 60 square yard of land at the present circle rate of 2025 along with 7% interest from the date of institution of suit by plaintiff. Thus, the decree passed by first appellate court is modified to this extent.
13. In view of above, substantial question of law framed on 11.02.2015 stands answered and the decree of first appellate court is modified to the extent that KDA shall pay to the plaintiff-appellant the cost of 60 square yard of land at the circle rate of 2025 along with 7% interest from the date of institution of suit, within a period of one month.
14. In view of above, both the second appeal partly succeed and decree of first appellate court stands modified to the extent indicated above.
15. Consequently, both the second appeal stands partly allowed.
(Rohit Ranjan Agarwal,J.)
November 18, 2025
(V.S.SINGH)
