Allahabad High Court
State Of U.P. And 2 Others vs Smt. Jayanti Devi on 21 November, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:208509
HIGH COURT OF JUDICATURE AT ALLAHABAD
SECOND APPEAL No. - 993 of 2017
State Of U.P. And 2 Others
.....Appellant(s)
Versus
Smt. Jayanti Devi
.....Respondent(s)
Counsel for Appellant(s)
:
Amit Kumar Singh, S C
Counsel for Respondent(s)
:
Shiv Kumar Singh, Veer Bhagat Singh Kushwaha
Court No. - 36
HON'BLE ROHIT RANJAN AGARWAL, J.
1. Heard Sri Vinod Kumar Sahu, learned Additional Chief Standing Counsel for appellants and Sri Sarvesh Kumar Pandey, learned counsel for plaintiff-respondent.
2. This appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred as "CPC") has been filed against judgment and decree dated 13.07.2017 passed by Additional District Judge (FTC-1), Lalitpur in Civil Appeal No. 1 of 2011 arising out of Original Suit No. 37 of 2008.
3. Facts, leading to present second appeal, are that a demolition exercise was carried out by appellant on 22.06.2005. The shop of plaintiff-appellant was demolished. The plaintiff-respondent filed an application as an indigent person under Order XXXIII Rule 1 CPC which was registered as Misc. Case No. 80 of 2005 which was allowed and registered as Original Suit No. 37 of 2008. In the said suit, following issues were framed:-
"1-???? ?????? ??????? ??? ?????? ?????? ?? ???? 80,000/-????? ??????????? ??? ?????? ???? ?? ????????? ???
2-???? ?????? ?? ??????? ???????? ?? ???????????? ????? ?? ?????? ?? ?
3-???? ?????? ??????? ???????? ?? ?????? ????? ?? ?
4-???? ??? ???? 38 ? 41 ????????? ????? ???? ?? ????? ???
5-???? ??? ?? ????????? ?? ???? ??? ? ?? ?? ??????? ?????????? ????????? ???
6 -???? ??? ???? 80 ??? ??? ?? ?????? ?? ?
7 -?????? ???? ?????? ???? ?? ????????? ???"
4. Issue nos. 1 and 2 were in regard to fact whether the plaintiff was entitled for Rs.80,000/- as damages from defendant-appellant, and further relief of mandatory injunction can be granted for reconstructing the demolished shop and the third issue was whether the plaintiff was owner in possession of property. All issue nos. 1, 2 and 3 were tried together and trial court found that demolition was carried out at 36.200 km from Lalitpur Mahrauni Tikamgarh Marg while the case of plaintiff was that he had got the map sanctioned from District Magistrate, Lalitpur of the shop in question. The trial court found that the map so sanctioned was for construction of shop at 37.50 km and demolition activity was carried out at 36.200 km. The suit filed by plaintiff was dismissed on 28.9.2010 against which Civil Appeal No. 1 of 2011 was filed in which following point of determination was made:-
"1- ???? ?????????????????/??????????? ?????? ?????? ???? ??? ??????? ??? ???? ?? ?????? ? ????? ?????????/?????? ???
2- ???? ????????????????? / ??????????? ?????? ?????????/?????? ?? ?? ??????? ?????? ???? ??? ??, ?? ??????? ???????? ?? ?????? ??? ??? ?? ?
3-???? ?????????/?????? ??????????? ?? ??? ??? ????? 80,000/-??????? ???? ?? ??????? ?? ?
4-???? ?????????/?????? ???? ???? ?????? ?? ??????? ???? ?? ????????? ?? ?"
5. The lower appellate court decided point of determination nos. 1, 2 and 3 together and held that map was sanctioned by District Magistrate on 27.07.1984 and relying upon the said fact that construction made was in accordance which was 45 feet from centre of road and relying upon Section 6(1) of U.P. Road Side Control Act, 1948 decreed the suit on 13.07.2017 and allowed the appeal.
6. Learned ACSC submitted that lower appellate court without reversing finding of trial court as to demolition having been made at 36.200 km had proceeded to decree the suit of plaintiff. According to him, no finding has been recorded by lower appellate court as to whether shop in question was situated at 37.50 km or 36.200 km. Once the trial court had found that the demolition was carried out at 36.200 km as it was specific case of defendant-appellant, the appellate court was not correct to hold otherwise without setting aside the finding recorded by trial court.
7. Learned counsel for plaintiff-respondent submits that the appellate court on the basis of Amin report had proceeded to decree the suit and found that map was sanctioned on 27.07.1984. However, he could not dispute the fact that finding recorded by trial court has not been reversed.
8. I have heard respective counsel for the parties and perused the material on record.
9. This appeal was admitted on 19.07.2019 on following substantial questions of law:-
"1. Whether the lower appellate court was justified in upsetting the finding recorded by the trial court without considering the evidence on record and without reversing those findings and to that extent, whether the judgement of the lower appellate court is perverse?.
2.Whether the lower appellate court was justified in allowing the damages of Rs. 80,000/ without adjudicating whether the plaintiff-respondent was entitled to that amount and to that extent, whether the judgement of lower appellate court is perverse?."
10. After hearing learned counsel for the parties and perusing the material on record, I find that lower appellate court erroneously allowed the appeal without setting aside the finding recorded by trial court that demolition activity was carried out at 36.200 km and map for constructing the shop was not sanctioned in respect of the same. Only reliance placed by appellate court while decreeing the suit and allowing the appeal was that map was sanctioned by District Magistrate on 27.07.1984 and once it was specific case of defendant-appellant that the shop was constructed in respect of map sanctioned at 37.50 km and demolition activity has been carried out at 36.200 km, the lower appellate court was bound to record finding before allowing the appeal and decreeing the suit of plaintiff-respondent.
11. Thus, considering the facts and circumstances of the case, I find that order passed by lower appellate court is unsustainable in the eyes of law and substantial question of law so framed above stands answered.
12. In view of above, the appeal succeeds and is partly allowed.
13. The order passed by lower appellate court is hereby set aside and the matter is remitted back to appellate court to decide the appeal afresh, within a period of four months, from the date of production of certified copy of this order.
14. Office to remit back the records of court below.
(Rohit Ranjan Agarwal,J.)
November 21, 2025
(V.S.SINGH)
