Allahabad High Court
Ram Prasad vs Mohd. Yusuf And Ors on 19 September, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:57714
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
SECOND APPEAL No. - 356 of 2011
Ram Prasad
.....Appellant(s)
Versus
Mohd. Yusuf And Ors
.....Respondent(s)
Counsel for Appellant(s)
:
S.K. Mehrotra, Dinesh Chandra Tripathi, I.D. Shukla
Counsel for Respondent(s)
:
Vimal Misra, Amrendra Singh, Mohammad Ehtesham Khan, Pradeep Kumar Shukla, Umesh Chandra Pandey
ALONGWITH
SECOND APPEAL No. - 357 of 2011
Ram Prasad
.....Appellant(s)
Versus
Mohd. Naushad And Ors
.....Respondent(s)
Counsel for Appellant(s)
:
S.K. Mehrotra, Dinesh Chandra Tripathi, I.D. Shukla, Ishwar Dutt Shukla, Santosh Kumar Mehrotra
Counsel for Respondent(s)
:
Vimal Misra, Amrendra Singh, Mohammad Ehtesham Khan, Umesh Chandra Pandey
RESERVEDCourt No. - 7
HON'BLE JASPREET SINGH, J.
1. These two second appeals have been filed by the defendants, assailing the judgment and decree dated 14.11.2011 passed in Regular Civil Appeal No.42 and 43 of 2004 by the Additional District Judge, Court No.5, Faizabad, as a consequence two regular suits filed by the plaintiffs bearing nos.45 of 1984 and 227 of 1987 which were dismissed by the judgment and decree dated 22.03.2004 by the trail court has been set aside and the suit which was dismissed by the trial court has been allowed by the first appellant court.
2. Since the parties, the property in dispute is one and the same hence both the second appeals are being decided by this common judgment.
3. For the sake of convenience the Court shall be referring to the parties as they were originally impleaded in the suits.
4. In order to appreciate the controversy involved in the two second appeals, it will be relevant to trace the chronological development of facts which gave rise to filing of two suits at two different point of time wherein separate issues were framed and though no formal order for consolidation of the two suits was passed yet they were tried together and decided by the same Court on the same day by two separate judgment and decree and similarly the first appellate court also decided two separate civil appeals by two separate judgments of the same day by the same Court.
Factual background
5. Mohd. Younus, Raviullha and Ayub, sons of Mohd. Yusuf alongwith Dost Mohammad, as plaintiffs, of Regular Suit No.45 of 1984, instituted a suit, initially claiming relief of permanent injunction, against Ram Prasad, Ghirau, Budru, Mahadev and Ram Chander.
6. It was pleaded that the property in question initially belonged to Mohd. Younus, Safiullha, Mohd. Yusuf and Bhaghai. Mohd. Younus had half share in Plot No.228 measuring 1 bigha 11 biswa and 15 dhur, situate in Mauja Rampur Bhagan, Pargana Paschim Raath, Tehsil Bikapur, District Faizabad (now Ayodhaya). It was further pleaded that Mohd. Younus had sold his half share to his sons who were the plaintiffs no.1, to 3 while plaintiff no.1 was his nephew. The defendants who were known to the plaintiffs but they had no right title or interest in the property in question, which was shown by the letters A, B, C, D in the site plan annexed and forming part of the plaint in suit, had attempted to encroach the said land and made an endeavour to dig a foundation to raise construction and this illegal action of the defendants led to the filing of the suit as mentioned aforesaid bearing Regular Suit No.45 of 1984 for injunction.
7. The defendants of the suit filed their written statement and disputed the contentions of the plaint and set up a case indicating that though the property in question belonged to Mohd. Younus, Dost Mohammad, Safiullha and Baghai but they had divided the property amongst themselves. It was also pleaded that Mohd. Younus had executed an agreement in favour of the defendants on 20.04.1973 after receiving Rs.12,000/- and also handed over the possession of an area measuring 65 feet (north-south) by (x) 23 feet (east-west) and the said agreement also permitted the defendants to raise construction.
8. It was further pleaded that in furtherance thereof the defendants had raised construction and they were in possession of the disputed property in question since 20.04.1973. Thus, the plaintiffs were not in possession of the property in question on the date of institution of the suit i.e. on 25.01.1984 hence, suit was not maintainable It was also pleaded that by virtue of the agreement dated 20.04.1973 executed by Mohd. Younus the defendants were given a perpetual licence coupled with the fact that this fact was known to the plaintiffs, hence when the defendants raised the construction which was never objected, accordingly the suit of the plaintiffs was barred by the law of acquiescence and estoppel.
9. Another defence was raised by the defendants that the plot in question i.e. Plot No.228 came in consolidation operations and in lieu of the said Plot No.228 the plaintiffs were given a different plot, hence they neither had the right over the said plot any more nor they had the possession, hence on this count also the suit was not maintainable.
10. During pendency of the aforesaid suit the trial court had granted ad interim injunction order in favour of the plaintiffs restraining the defendants from raising construction but it was the case of the plaintiffs that from the date of grant of the injunction order and by the time the Advocate Commissioner visited the property to make the spot inspection and submit its report i.e. between 25.01.1984 to 08.02.1984 the defendants raised construction, hence the plaintiffs amended the plaint and sought further reliefs including the prayer for removal of the constructions raised over the property in question.
11. While the said suit bearing No.45 of 1984 was pending the plaintiffs once again filed another suit bearing No.227 of 1987 in respect of the property in question and claimed the relief in the nature of possession by way of a decree of mandatory injunction on the premise that the defendants did not have a right and since they had raised construction during pendency of the first suit, hence the defendants be commanded by a decree of mandatory injunction to remove the offending constructions and hand over the possession of the disputed property in question to the plaintiffs. This subsequent suit came to be registered as Regular Suit No.227 of 1987.
12. This second suit was also contested by the defendant Ram Prasad on the same premise as the defence raised in the earlier suit bearing No.45 of 1984. The crux of his defence was the agreement dated 20.04.1973 and that the defendant was the permanent licencee and he was in possession since 20.04.1973 and had raised the construction with the consent of the father of the plaintiffs no.1, 2 and 3, namely, Mohd. Younus and when the defendants had raised construction it was not objected, accordingly the suit was liable to be dismissed.
13. In Regular Suit No.45 of 1984 ten issues were framed. However, the relevant issues were: (i) Whether the plaintiffs were the owners in possession of the disputed property?; (ii) Whether the suit was not maintainable in absence of the possession of the plaintiffs?; (iii) Whether the father of the plaintiffs no.1 to 3, namely Mohd. Younus had executed any agreement in favour of the defendant dated 20.04.1973 and if so its effect?; (iv) Whether the defendants was a permanent licencee as claimed by him?; (v) Whether the suit was barred by the law of acquiescence and estoppel?
14. In the second suit bearing No.227 of 1987, the trial court framed separate issues. However, they were quite similar to the issues framed in Regular Suit No.45 of 1984. However, for the same of clarity the relevant issues framed in Regular Suit No.227 of 1987 are also being noticed as under: (i) Whether the plaintiffs were the bhoomidhar of the disputed land?; (ii) Whether the defendants was the owner of the disputed property as alleged in paragraph-17 of the written statement?; (iii) Whether the defendants was the licencee as alleged in para-18 of the written statement?; (iv) Whether the suit of the plaintiffs was barred by acquiescence and estoppel?; (v) Whether the suit of the plaintiffs was barred by Section 5 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to the Act of 1953) and was liable to abate?; (vi) Whether the second suit was liable to be stayed in terms of Section 10 CPC?
15. The matter thereafter went to trial and the plaintiffs in order to support their case had filed both documentary evidence and also examined witnesses. In so far as the defendant is concerned, he has filed his documents but did not lead any oral evidence by examining any witness.
16. It is from this point of time that the trial took a different turn. This is for the reason that the trial court noticing that ample opportunity was granted to the defendant of Regular Suit No.45 of 1984 yet he did not lead evidence and as such the same was closed and the matter was fixed for judgment on 22.03.2004. The trial court vide its judgment and decree passed in both the suits on the same day i.e. 22.03.2004, dismissed both the suits of the plaintiffs, wherein a finding was recorded that the plaintiffs were the owner of the property in question but they were not found to be in possession. It also recorded a finding that since the defendant led no evidence to substantiate his claim relating to the agreement dated 20.04.1973, hence no right accrued to the defendants. However, since the plaintiffs could not establish their possession, hence the suit for injunction both permanent as well as the relief of mandatory injunction claimed in the second suit bearing Regular Suit No.227 of 1987 was dismissed and the relief of possession was also refused.
17. The plaintiffs being aggrieved preferred two regular civil appeals under section 96 CPC. The judgment and decree passed in Regular Suit No.45 of 1984 gave rise to the First Appeal bearing No.43 of 2004 whereas the judgment and decree dated 22.03.2004 passed in Regular Suit No.227 of 1987 gave rise to Civil Appeal No.42 of 2004 both the appeals were heard by the Additional District Judge, Court No.5, Faizabad and by means of judgment and decree dated 14.11.2011 passed separately in the two civil appeals allowed the same and decreed the suit of the plaintiffs. The first appellate court while allowing the civil appeals and decreeing the suit directed the defendants to remove construction and hand over the possession to the plaintiffs within a period of three months.
18. It is in the aforesaid backdrop that the defendants in the two suits being aggrieved by the judgment of reversal dated 14.11.2011 assailed the same in the instant two second appeals. Judgment and decree of reversal passed in Civil Appeal No.43 of 2004 has given rise to the Second Appeal No.356 of 2011 whereas the judgment and decree of reversal passed in Civil Appeal No.42 of 2004 which emanates from Regular Suit No.227 of 1987.
Questions of law
19. Both the above second appeals were admitted by a Co-ordinate Bench of this Court by means of order dated 25.11.2011 and the second appeals were admitted on substantial questions of law nos.1, 2 and 3 as proposed in the memo of second appeal of the two appeals before this Court
20. For the sake of clarity, the three substantial questions of law in each of the two appeals is being reproduced hereinafter for ease of reference:
Substantial questions of law in Second Appeal No.356 of 2011:
1. Whether the judgment and decree passed by the appellate court is based on perverse finding and is thus legally unsustainable?
2. Whether the lower appellate court was legally justified in decreeing the suit in question without determining the effect of consolidation proceedings on the land in suit keeping in view the provisions contained in Section 30 of the U.P. Consolidation of Holdings Act providing that the right and title of the landlord/owner will cease in the plot excluded from his holding in exchange for allotment made some other place?
3. Whether the lower appellate court held erroneously that the agreement dated 20.04.1973 for sale on which Mohd. Yunus identified his signatures in his statement recorded in the trial was neither placed on record nor was prove by any evidence?
Substantial questions of law in Second Appeal No.357 of 2011:
1. Whether the lower appellate court acted illegally in reversing the judgment and decree passed by the trial court basing it on perverse findings?
2. Whether the findings of the courts below that the suit in question was not liable to be stayed under Section 10 CPC in view of the pendency of regular suit no.45/1984 based on the same agreement relied upon by the defendant/appellant had been filed earlier?
3. Whether the lower appellate court was justified in reversing the finding recorded by the trial court ignoring that the trial court did not afford opportunity of leading evidence to the defendant/appellant as the said court thought it inappropriate to afford opportunity as it was going to dismiss the suit and in such a circumstances was it not imperative for the appellate court to remand the above suit to afford opportunity of leading evidence to the defendant/appellant?
Submissions on behalf of the appellant
21. Shri I. D. Shukla, learned counsel for the defendant/appellant in both the second appeals submitted that the appellant was not afforded an adequate opportunity to contest the trial appropriately. It was submitted that on 16.03.2004 the defendant had moved an application for adjournment in Regular Suit No.45 of 1984. However, the trial court rejected the said application and proceeded to fix the matter for judgment on 22.03.2004. The defendant had moved an application for recalling of the order dated 16.03.2004 but the said application came to be rejected and the judgment dismissing the suit of the plaintiff in both the suits came to be passed on 22.03.2004. Since the suit had been dismissed, hence there was no occasion for the defendant to have taken the matter forward at that point of time. But nevertheless when the plaintiffs filed the first appeal bearing Nos.43 and 42 of 2004, it was incumbent upon the first appellate court to have seen the matter in its entirety and should have granted an opportunity to the defendants to lead evidence and having not granted such an opportunity the first appellate court committed an error in reversing the findings returned by the trial court to decree the suit of the plaintiff respondent, to the detriment of the defendant.
22. It was further urged that the defendant had raised a substantial defence which was based on an agreement dated 20.04.1973 executed by Mohd. Younus who was the father of the plaintiffs no.1, 2 and 3 and uncle of the plaintiff no.4 by virtue of the said agreement substantial rights had been created in favour of the defendant who acquired the status of a permanent licencee. The defendant had been in possession of the disputed property since 20.04.1973 whereas the first suit filed by the plaintiffs came to be instituted only in the year 1984 almost after 11 years and the defendants were in possession since the said time and had raised construction which was in the knowledge of both Mohd. Younus as well as the present plaintiffs and in the given circumstance once the findings have been recorded by the trial court that the plaintiffs were not in possession before such a findings could have been reversed the first appellate court should have considered the fact that upon reversal of the said finding the appellant should have been granted an opportunity to contest which necessarily required the first appellate court either to remand the matter permitting the defendant to lead the evidence or in the alternate could have exercised its powers in terms of Order 41 Rule 25 CPC remanding the proceedings for a limited purpose of permitting the defendant to lead their evidence on issues relating to the agreement, possession as well as the implications in light of the plea taken by the defendant concerning the applicability of Section 5 and Section 30 of the Act of 1953.
23. It is thus urged that practically the first appellate court has allowed the appeal ex parte even though the defendant contested the first appeal and the evidence available on record including the cross-examination of the plaintiffs witness, who stated that the plaintiff was not in possession and upon they were out of possession since 1973 and no categoric answer was given, accordingly, the suit could not have been decreed.
24. It was further urged that the defendant had filed the original copy of the agreement dated 20.04.1973. However, the plaintiffs tampered with the said agreement which was reported to the District Judge, who held an inquiry. The defendant had also filed documents relating to the proceedings under the Act of 1953 to indicate that the suit ought to have abated and moreover Plot No.228 after the consolidation operation was given a new number and as a consequence the possession of the plaintiffs did not relate to the Plot No.228 rather in lieu of the said plot the plaintiffs had been given a different plot, hence they lost their rights to contest the proceedings and seek the decree of permanent as well as mandatory injunction, accordingly the aforesaid plea could not be contested appropriate which went to the roots of the matter and apparently the first appellate court should have taken a view of the entire circumstance before decreeing the suit but failed to do so and it has vitiated the judgment.
25. It was also urged that admittedly the plaintiff had instituted the first suit bearing Regular Suit No.45 of 1984 and later the plaint had also been amended in this light there was no occasion for the plaintiffs to have instituted the second suit No.227 of 1987 which related to the same property in between the same parties and the dispute was materially and effectively the same, hence the trial of the second suit bearing No.227 of 1987 ought to have been stayed in terms of Section 10 CPC and this aspect has also not been considered by the first appellate court and thus for all the aforesaid reasons the judgment and decree passed by the first appellate court in Regular Civil Appeal Nos.42 and 43 of 2004 are vitiated and the instant second appeals deserve to be allowed.
26. Learned counsel for the appellant has relied upon the decision of the Apex Court in Mahanagarpalika vs. Sureshbhai Bhanubhai Thakkar and another (2016) 15 SCC page 675 and State Bank of India Vs. Km. Chandra Govindji 2000 (8) SCC 532.
Submission on behalf of the respondents
27. Shri U. C. Pandey, learned counsel for the respondents submitted that the plea of Section 10 CPC was never raised by the appellant before the trial court nor before the first appellate court. The plea of Section 10 should have been raised at the first given opportunity and having failed to do so and once the trial had commenced and culminated in a judgment and decree dated 22.03.2004, now the said plea cannot be taken nor the judgment and decree can be said to be bad for want of compliance of Section 10 CPC. For the aforesaid reason, the said submission cannot help the learned counsel for the appellant and the judgment of the first appellant court cannot be disturbed for want of compliance of Section 10 CPC in a second appeal.
28. It is further urged that even the plea of Section 5 and Section 30 of the Act of 1953 cannot come to the aid of the appellant for the reason that no sufficient pleadings were present before the trial court more so in absence of any evidence the said plea cannot be taken as a substantial question of law in the instant second appeals.
29. It is further urged that all such proceedings pending before any court dealing with the subject matter which can be adjudicated before the Consolidation Authorities only such cases may abate. However, in the instant case the plaintiffs had claimed a decree of injunction which nevertheless is only cognizable by Civil Court as the Consolidation Authorities cannot issue or grant any injunction, hence the plea of Section 5 of the Act of 1953 as purportedly raised by the appellant cannot be sustained.
30. As far as the plea of Section 30 of the Act of 1953 is concerned, even that does not create any hindrance in the adjudication of the limited rights which was to be adjudicated in a suit for injunction before the Civil Court. Moreover, any plea of Section 30 can only be ascertained on the basis of evidence and the defendant did not lead any evidence, hence it cannot be said that the first appellate court had committed any grave error in this regard.
31. It is further urged that since the defendant admitted the original owner to be Mohd. Younus, hence the title of Mohd. Younus was actually admitted and not in dispute hence upon execution of the sale deed by Mohd. Younus in favour of the plaintiffs no.1 to 4 tacitly amounts to admitting the rights and title of the present plaintiffs and in absence of any evidence to substantiate any right of the defendant. The defendant cannot resist the decree which has been validly passed by the first appellate court on the basis of admitted facts and evidence hence it cannot be said that there is any illegality or perversity in the findings recorded by the first appellate court. Accordingly, the appeals deserves to be dismissed.
Discussions and analysis
32. The Court has heard the learned counsel for the parties at length and also perused the material on record.
33. The facts and the issues before the trial court have been taken note of in the opening paragraphs of this judgment. The Court has also noted the three substantial questions of law in both the appeals. Having taken a robust look at the entire controversy the points for determination emerging from the substantial questions of law framed under two appeals and the submissions advanced by the learned counsel for the parties are:-
(A) Whether the plea of Section 10 CPC can impact the decision of the first appellate court?
(B) Whether the suit of the plaintiff respondent were hit by Section 5 and 30 of the U.P. C.H. Act, 1953?
(C) Whether the defendants have been deprived of an opportunity to contest the suits?
(D) Whether the first appellate court had committed an error in reversing the findings of trial court?
34. This Court now proposes to deal with the aforesaid points for determination as under:-
35.(A) At the outset, it will be relevant to notice the provision of Section 10 CPC which is being reproduced hereinafter for the ease of reference:- "10. Stay of suit.?No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government ***.] and having like jurisdiction, or before [the Supreme Court]. Explanation.?The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action."
(i) From the bare perusal of the aforesaid provision it would indicate that Section 10 does not bar the institution of the suit or grant of any ancillary or incidental relief. However, the said provisions only bars the trial of the subsequent suit, if the issue in question is directly and substantially the same as involved in the earlier suit. Apparently, the purpose of Section 10 is to avoid multiplicity of proceedings and to ensure that there are no contradictory findings or decree passed by two courts.
(ii) Applying the provision of Section 10 CPC to the facts of the instant case, it would reveal that the plea of Section 10 CPC was never raised by the defendant in his written statement filed in the second suit bearing No.227 of 1987. At the given point of time when the second suit came to be instituted though it primarily related to the same parties relating to the same property but the fact remains that the said plea was not raised at the appropriate time. Once the trial of both the suits proceeded without any demur from the defendant and needless to say that the defendant participated in the said proceedings throughout and it also culminated in a judgment passed by the trial court in two separate suits though of the same date. Hence, now the said plea cannot be raised by the defendant. More so the aforesaid issue was also not even raised before the first appellate court, in the sense that since the suit of the plaintiff had been dismissed by the trial court and it was plaintiff who had preferred the first appeal yet the defendant as part of his submissions did not saw the said ground before the first appellate court. In any case once the trial had already culminated in a judgment and decree, now the said plea cannot be taken before this Court in a second appeal in exercise of powers under Section 100 CPC. Even otherwise the learned counsel for the appellant could not demonstrate as to what prejudice has been caused which may be of such gravity that it may impact the trial of the two suits which may require interference of this Court.
(iii) In view of the aforesaid, this Court finds that the plea sought to be raised by the appellant that the trial was vitiated for non-compliance of Section 10 CPC has no legs to stand and is turned down. The question is answered accordingly.
36. (B) Taking note of the plea raised by the defendant primarily in Regular Suit No.227 of 1987 relating to the applicability of Section 5 and 30 of the Act of 1953, it would reveal that Section 5 of the Act of 1953 speaks of the effect of notification made under Section 4 of the Act of 1953. The Scheme of the Act of 1953 is as such that when a village is notified under Section 4 of the Act of 1953 then one of its consequence is that all proceedings pending before any Civil Court or Revenue Court abate. However, it is relevant to note that such proceedings which are pending before the Civil Court wherein the relief claimed for adjudication relates to issue which can be decided by the Consolidation Authorities only in such cases the proceedings abate.
(i) Apparently, in proceedings before the Act of 1953 the Civil Procedure Code 1908 in its entirety is not applicable. Moreover, the relief of injunction can be granted by the Civil Court and not by the Consolidation Authorities and to that extent the proceedings or injunction pending before the Civil Court may not abate. It will be relevant to notice that in the instant case though a bald plea was taken in the written statement but the said plea was not backed by sufficient particularity to indicate when the notification under Section 4 of the Act of 1953 was made. This assumes importance for the reason that the effect of a notification under Section 4 of the Act of 1953, which is provided in Section 5 of the Act of 1953, can be determined once there is a date of the notification. Merely at any point of time if the village had been under consolidation operation, will not mean that for all times to come the proceedings cannot be instituted in any other forum.
(ii) Since neither in the written statement of the two suit nor such a notification was filed by the defendant as part of the evidence, it cannot be said that merely because at some point of time the consolidation operation had commenced would impact the present suit as well. For the plea of Section 4 of the Act of 1953 to apply it is but necessary to indicate the date of the notification which is missing in the instant case. Hence, the plea of Section 5 of the Act of 1953 does not have any impact in the present case for want of the necessary details and absence of evidence. Similarly, the plea of Section 30 sought to be raised by the appellant is also a pure question of fact and since there is no sufficient pleading nor any evidence to indicate that when the village came under consolidation, when was the village de-notified in terms of Section 52 of the Act of 1953 coupled with the fact that what was the plots numbers of the original plaintiffs which after consolidation were given different plot number and to whom and when the possession was handed over upon the closure of the consolidation operation. In absence of these details and evidence in this regard the aforesaid plea cannot be entertained. The aforesaid two plea of Section 5 and Section 30 are not such absolute propositions which by mere invoking would denude the jurisdiction of the Civil Court. Since the defendant did not bring any material on record to the aforesaid effect, hence, the said plea of Section 5 and Section 30 of the Act of 1953 cannot be examined in abstract.
(iii) Before parting with this point of determination it will also be relevant to notice that the plea raised by the appellant regarding the Act of 1953 also becomes doubtful for the reason that it was the case of the defendant that the property in question had already come in within the abadi. Once the land had come within the abadi apparently such land is exempted from Act of 1953. The plea raised appears to be based on misconception or merely for the purposes of raising multiple defence. Accordingly, it cannot be said that the suit of the plaintiffs were barred. The said question of law is answered accordingly.
37. C and D The aforesaid two points for determination are inter connected, hence they are being taken up together. The primary submission of the learned counsel for the appellant is that they have been deprived of an opportunity of hearing coupled with the fact that the first appellate court had committed a perversity in reversing findings returned by the first appellate court.
(i) At this stage, it will be worthwhile to examine the proceedings and how they unfolded. In the two suits filed by the plaintiff, the defendant filed its written statement. It is not in dispute that in both the suits separate issues were framed. It is also not disputed that the defendant did not make any application before the trial court seeking consolidation of the two suits or seeking stay of the trial of the subsequent suit. It is also not disputed that the plaintiffs and the defendant had filed their documentary evidence. This Court is conscious of the fact that a submission had been made by the counsel for the appellant that the trial court as well as the first appellate court have noticed that the defendant did not lead any evidence.
(ii) The record would indicate that the defendant did file the agreement dated 20.04.1973 and also filed certain documents relating to the land in question as purportedly being statements of CH Form No.41 and 45 to indicate the earlier plots number [prior to consolidation] and what were the new number given after consolidation. Even assuming that the trial court has incorrectly recorded that the defendant did not lead evidence but the fact remains that mere filing of documentary evidence does not ipso facto leads to any inference that any plea raised by a party stands proved merely because such documentary evidence is merely on record without proving it.
(iii) It is admitted case that the defendant did not enter into the witness box nor examined any witness. It is also an undisputed fact that the defendant did cross examine the plaintiffs and his witnesses. It is also an undisputed fact that after the suits were dismissed by the trial court and the plaintiffs had filed the first appeal, the defendant did not file any cross appeal or any cross objection in terms of Order 41 Rule 22 CPC.
(iv) In light of the aforesaid undisputed facts merely to state that the defendant did not get an opportunity to contest may not be entirely correct for the reason, as this Court examined the trial court records and it indicates that on several dates time was granted to the defendant to lead his evidence. It is also noticed that the first suit was filed in the year 1984 and the second suit was filed in the year 1987 and both came to be decided on 22.03.2004 i.e. after almost 20 years.
(v) In this regard, if the proceedings as transpired before the trial court is examined, it would reveal that on 16.03.2004 the defendant had moved an application for adjournment which was rejected and this is that point of time when previously, several opportunities to lead evidence was afforded to the defendant but it was never availed of. The trial court cannot be said to have committed an error by refusing the adjournment as no party can have any vested right to keep the matter pending or to get it adjourned repeatedly and indefinitely.
(vi) Be that as it may, even before the first appellate court the plaintiffs who were the appellants (as their suits had been dismissed by the trial court) and even the defendant who contested the first appeal yet it did not take recourse to the provision as contained in the Code of Civil Procedure to put forth its case by resorting to Order 41 Rule 22 CPC assailing the findings which were against the defendants as recorded by the trial court even though the suits had been dismissed by the trial court.
(vii) This assumes insignificance for the reason that the trial court had recorded a finding in favour of the plaintiffs regarding title to the property and also the findings relating to the maintainability of the suits on the plea of Section 5 and 30 of the Act of 1953, the plea relating to estoppel and acquiescence were decided against the defendant.
(viii) The law is clear in this regard that once the trial court had held that the plaintiffs were the admitted owners, this was a clear findings against the defendants. The trial court had also turned down the plea of estoppel, acquiescence and the suit being barred in terms of the Act of 1953. These findings were also against the defendant and the moment the first appeal was filed by the plaintiffs, the defendants, in law had the right to assail these findings which were recorded against him but it was not done and such findings attained finality.
(ix) Since the defendant did not take recourse to the said provision of Order 41 Rule 22 CPC and continued to contest to proceedings before the first appellate court only on the basis of the evidence already available and not having made any application or endeavour before the first appellate court to even make an effort regarding raising a plea of denial of an opportunity of hearing or the fact that the defendant wanted to lead his evidence, which as per the appellant he was prevented upon his application for adjournment having been dismissed on 16.03.2004. Hence, now at this stage the appellant cannot cry foul as it had missed the boat before the trial court to lead evidence and did not take recourse to statutory provision to challenge the findings returned against him in first appeal, hence it cannot be said that the defendants were deprived of any opportunity. Denial of an opportunity is easily said than substantiated. In the instant case, it would reveal that several opportunity were granted by the trial court but the defendant did not lead any evidence and even before the first appellant court, the appeal remained pending since 2004 and as the appeal were allowed in the year 2011, yet the defendants remained present before the first appellate court without staking any claim or raising a plea regarding denial of an opportunity. Thus, this Court from the perusal of the record is satisfied that now it is not open for the appellant to plead that they were not granted any opportunity.
(x) As far as the issue of perversity is concerned, it will be worthwhile to mention that unless a finding is based on no evidence or inadmissible evidence or an inference is drawn which cannot be arrived at by any fair and prudent person till then a finding cannot be said to be perverse.
(xi) In the instant case, admittedly the defendant did not lead any evidence and the evidence on record and the findings recorded by the first appellate court could not be demonstrated to be based on either inadmissible evidence or no evidence or that the inference drawn by the first appellate court is as such which no prudent person could arrive at.
(xii) There is another way to look at the problem before this Court and that is the defendants had taken a plea that they were the permanent/perpetual licencee based on an alleged agreement dated 20.04.1973. Apparently, the said agreement was placed on record but then it was not proved. Though it is suggested by the learned counsel for the appellant that the plaintiffs had tampered with the said document but nevertheless this also remained unsubstantiated for the reason that assuming if the said document had been tampered yet the defendant had an opportunity of seeking leave of the trial court to lead secondary evidence but admittedly no such effort was made. It will also be relevant to notice that the plaintiffs had categorically stated that they were the owners in possession of the property in question and this fact was denied by the defendant claiming rights on the basis of the agreement dated 20.04.1973 coupled with the fact that it was alleged by the defendant that he was in possession since 20.04.1973.
(xiii) A significant feature is that the defendant in his written statement did not deny the right of Mohd. Younus to be the owner of the property. Having admitted this fact and simultaneously setting up a title on the basis of the alleged agreement on 20.04.1973 as perpetual licencee and having failed to prove that naturally the title of the plaintiffs practically was never in dispute.
(xiv) This was a major finding which was recorded by the trial court and though the suit was dismissed but that was primarily on the ground that the plaintiffs could not establish his possession. If the defendant had raised the plea of perpetual licencee and having acquired rights from Mohd. Younus this in itself amounts to admitting the title of Mohd. Younus and without proving the status of perpetual licencee, it could not be challenged that Mohd. Younus did not have a right to execute the sale deed in favour of the plaintiffs no.1 to 4.
(xv) Moreover, the said sale deed was never challenged by the defendants nor any declaratory relief was sought by the defendant by filing a counter claim in the given facts. Once the title of the plaintiffs was not disputed and admittedly there is no plea from the side of the defendant on the basis of adverse possession rather the plea was that of perpetual licencee. In such circumstances, if the licencee or Mohd. Younus had transferred the property to the plaintiffs which could not be disputed the plaintiffs could have sought the removed of the defendants who treated themselves to be licencee and in absence of any evidence to the contrary, the possession of a licencee is merely permissive in nature and no transfer of possession takes place from the licence to the licencee, hence in this light the plaintiffs could have sought handing over of possession by seeking a relief of mandatory injunction.
(xvi) In this regard it would be relevant to refer to the decision of Sant Lal Jain Vs. Avtar Singh AIR 1985 SC 857 wherein the apex court held :-
"6. Now the parties are bound by the following factual findings recorded by the learned Additional District Judge in the first appeal, namely: (1) that the appellant who had become the sole proprietor of M/s Jain Motors in 1967 though at the time of the lease of the property by the original owner Lt.-Col. Sadan Singh to Jain Motors in 1963 he was only one of its partners, was the lessee of the property; (2) that the respondent had become a licensee of the suit shed under the appellant when the appellant was in possession of the whole of the demised premises including the suit shed as tenant under the original owner; (3) that the licence in favour of the respondent had been revoked before the institution of the present suit and (4) that subsequent to the decision in the first appeal on December 7, 1978 the respondent had purchased the entire property from the original owner by a sale-deed dated August 27, 1979. In these circumstances, there is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the respondent or of the licence given by the appellant to the respondent which had been revoked prior to the date of the suit. The lease in favour of the appellant continues, and it is not disputed that under the Act of 1949 referred to above, even the tenant of a vacant land in Patiala town cannot be evicted therefrom except in accordance with the provisions of that Act. In K.K. Verma v. Union of India [AIR 1954 Bom 358 : ILR 1954 Bom 950 : 56 Bom LR 308] Chagla, C.J. presiding over a Division Bench has observed that in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. In Milka Singh v. Diana [AIR 1964 J&K 99 : 1964 Kash LJ 141] it has been observed that the principle that once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:
?After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict a licensee has always been held to be maintainable.
. . .where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act.? "
(xvii The issue was also considered by this court in Ajab Singh Vs. Shital Puri (Deceased by LRs) 1993 SCC OnLine All. 26 wherein it was held :-
25. The plea that only a suit for possession and not mandatory injunction would lie against a person in occupation of the property as licensee after termination of licence is, however, unsustainable. The possession of the licensee for all practical purposes being of owner himself, once the licence is terminated the licensee is bound to restore the possession to the owner and in the event of default, the owner is entitled to mandatory injunction to direct delivery of possession. In Sant Lal Jain v. Autar Singh, reported in 1985 All CJ 563 : ((1985) 2 SCC 332 : AIR 1985 SC 857), the law on this point has been laid down by the Supreme Court in the following terms (at p. 859 of AIR):?
?After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under S. 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict the licensee has always been held to be maintainable??. where a licensor approached the Court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licensor causes huge delay, the Court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case, the licensor will have to bring a suit for possession which will be governed by S. 7(v) of the Court-Fees Act.?
38. This fact part once title had been upheld and it was never assailed by the defendant and for some reason it could be held that possession cannot be handed over to the plaintiffs through a decree of mandatory injunction yet the fact remains that the courts always have the powers to mould the relief in the given circumstances and on the strength of the aforesaid proposition the first appellate court could have granted the decree of possession subject to payment of court fee and merely by couching the relief in the nature of mandatory injunction cannot denude the power of the court to grant the appropriate remedy as required in law.
39. Thus, it cannot be said that the finding recorded by the first appellate court was perverse. The first appellate court had clearly noticed that the defendant had not assailed any finding of title of the plaintiff and since the suit was dismissed only in respect of the finding given on issue no.7 regarding possession the first appellate court was justified in considering the matter on the basis of evidence available before it being the first appellate court who had the power to both re-examine and re-appreciate the evidence and it cannot be said that the first appellate court has committed an error in exercise of its jurisdiction conferred in terms of Section 96 CPC.
40. The decision cited by the learned counsel for the appellant in Mahanagarpalika (supra) though as a proposition is not disputed but as noticed above the facts of the instant case and the manner in which the defendant had misused the liberty before the trial court it does not help the appellant. The other decision cited by the learned counsel for the appellant of State Bank of India (supra) regarding refusal of an adjournment on Advocate's illness also does not come to the aid of the appellant for the reason that the conduct and the manner in which the appellant has misused the proceedings does not reflect well, hence the said decision also does not help the defendant.
41. For the aforesaid reasons, this Court does not find that there is any substance in the submissions of the learned counsel for the appellant. Accordingly, the appeals sans merit and are dismissed. The judgment and decree passed by the first appellate court dated 14.11.2011 in Civil Appeal Nos.42 and 43 of 2004 are affirmed. There shall be no order as to costs.
42. The record of the trial court be returned forthwith.
(Jaspreet Singh,J.)
September 19, 2025
ank
