Niranjan Sardar And Another ... vs Ravindra Nath Sardar And Others
2021 Latest Caselaw 375 UK

       HIGH COURT OF UTTARAKHAND
               AT NAINITAL
                Second Appeal No. 115 of 2012

Niranjan Sardar and Another                   ...Plaintiffs/Appellants

                             Vs.
Ravindra Nath Sardar and others           ...Defendants/Respondents

Advocate:    Mr. Jagdish Chandra Belwal, Advocate for the petitioner



Hon'ble Sharad Kumar Sharma, J.

This Second Appeal, was preferred by the plaintiffs/appellants, challenging the impugned judgment dated 03.08.2012, as was passed by the Court of learned 3rd Additional District Judge, Rudrapur, District Udham Singh Nagar, which was rendered in Civil Appeal No. 12 of 2011, Niranjan Sardar and another Vs. Ravindra Nath Sardar and others, whereby the Appeal, which had been preferred by the plaintiffs/appellants, was dismissed and as a consequence thereto, it had resulted into an affirmation of the judgement and decree dated 21.02.2011, which was passed by the Court of Civil Judge (Junior Division), Rudrapur, in Civil Suit No. 44 of 2009, Niranjan Sardar and another Vs. Ravindranath and others, whereby the suit of the plaintiffs/appellants was dismissed.

2. The fact, as emerging for consideration, from the said suit, which was instituted by the plaintiffs/appellants were that, they had contended that they are the brothers and cousin brothers of the defendants/respondents to the suit and on account of a wrongful interference which was being made by them, over the property in question, they had instituted a suit for the grant of a decree of permanent injunction in relation to the property, which was the subject matter of the suit, lying in khata khatauni No.

328, khasra No. 558, having an area of 1.606 hectares, out of which the land having an area of 0.404 hectares, was settled with them under the family settlement of 25.09.1995, which the plaintiffs/appellants contended that the disputed land had fallen in his share in accordance with the family settlement, which had been arrived at between them on 25.09.1995.

3. The defendants/respondents before the trial Court had filed their written statement admitted the fact of the family settlement and had also admitted the fact that the said family partition, was placed on record before the Court below, but they have contended that since their names have been recorded in the revenue records, over the aforesaid disputed land and hence they denied the fact of there being a family partition, having been taken between them, they admitted recording to their names on the basis of family settlement.

4. A finding has been recorded that the defendant No. 3, had put in appearance before the Court below and had filed his written statement as paper No. 22(ka), but subsequent thereto, he had not participated in the proceedings before the trial Court, similarly, defendant Nos. 2, 4, 5 and 6 had not appeared before the trial Court, hence the case was directed to be proceeded ex parte against them by an order dated 06.10.2009, which remained intact till the trial Court decided the suit.

5. Based on the inter se pleadings, which was raised between the parties, the learned trial Court had framed the issues on 22.01.2010, and thereafter, additional issue was framed on 19.02.2010, to the following effect:-

**1- D;k oknhx.k fookfnr Hkwfe ds dkfct Lokeh gS\ ;fn gkW rks izHkko\

2 D;k oknhx.k ds }kjk okn dk ewY;kadu de fd;k x;k gS rFkk vi;kZIr U;k;"kqYd vnk fd;k x;k gS\ 3- D;k orZeku okn dks Jo.k djus dh vf/kdkfjrk bl U;k;ky; dks izkIr gS\ 4- vuqrks'k\ 5- D;k nkok oknh /kkjk&10 tk0nh0 ls ckf/kr gS\ 6- D;k nkok oknh fof"k'V vuqrks'k vf/kfu;e ls ckf/kr gS\ 7- D;k nkok oknh /kkjk&331 m0iz0 tehankjh ,oa Hkwfe lq/kkj vf/kfu;e ls ckf/kr gS\**

6. Primarily, the issue of concern would be the issue No. 1, which was formulated to the effect, that as to whether the plaintiffs were the owners of the property in question, which they have contended to have fallen in their shares, in terms of the family settlement dated 25.09.1995, which was a fact, the execution of which was not denied by the defendants/respondents, in the proceedings before the Court below.

7. Another issue, which might have been relevant would be the findings which has been recorded by trial Court on issue Nos. 5 and 7, pertaining to the bar being created by Section 10 of the CPC, and issue No. 7, because of the issue agitated of the bar of maintainability of the suit being created by the provisions contained under Section 331 of U.P.Z.A & L.R. Act.

8. The plaintiff, in support of his contention had placed the documents on record by way of list paper No. 8(ga) i.e. khata katoni pertaining to the fasli year 1414 to 1419, as well as the khatoni pertaining to 1402 to 1406 fasli. Apart from it, the oral testimony was also recorded of the plaintiffs as PW1 of Niranjan Sardar and PW2 as Dhalal Singh and PW3 Pradeep Kumar in support of their case before the learned Court below. On the

contrary, the defendants have placed on record the documentary evidence by way of list No. 49(ga) i.e. the order passed by the Assistant Collector/District Udham Singh Nagar, by virtue of which they have contended that they stand recorded in the revenue record by virtue of an order passed on 25.09.1995, the notarised evidence of which was filed before the Court below, besides this, defendant No. 1 Mr. Ravindra Sardar and defendant No. 2, Kanahi Lal, had appeared and recorded their testimony before the Court below and recorded their oral statement. When the trial was proceeding, the trial Court has proceeded ex-parte as against defendant Nos. 2, 3, 4, 5 and 6.

9. During the course of the trial, the issue Nos. 5 and 7, which pertained to the maintainability of the suit for the grant of decree of permanent injunction as was sought to be agitated by the appellants and its maintainability aspect, which was argued by the parties before the Court below and ultimately formulated by way of an issue to be decided by the trial Court. The learned trial Court has passed an order dated 17.09.2020, whereby the issue No. 5, pertaining to the bar of Section 10 of the CPC regards maintainability of suit and on the sustainability of the suit was decided in favour of the plaintiffs. Similarly, the issue pertaining to the bar being created by the provisions contained under Section 331 of the U.P.Z.A & L.R. Act, was also decided in favour of the plaintiffs, holdings thereof that looking to the nature of decree sought in the plaint, in relation to the subject matter of the suit i.e. the property in dispute as described above, the bar of the provisions contained under Section 331 of U.P. Zamindari and Land Reforms Act, 1950, would not come into play. This order of 17.09.2020, on the aforesaid issue has attained finality, and suit was proceeded to be decided on merits.

10. Another vital issue, which would be having a much bearing on the judgment of the learned trial Court was the issue pertaining to the ownership of the property, which the appellants had claimed to have been settled with them on the basis of the family settlement of 25.09.1995, already referred to above, which was entered into between the parties and whereby the settlement of rights and apportionment was already made. But, however, as far as the said aspect of settlement of ownership with the plaintiffs over the disputed property is concerned, the learned trial Court, while deciding the said issue had held that the issue of ownership cannot be decided in favour of the plaintiffs at that stage of adjudication of the suit, for the reason being that the proceedings before the Revenue Court for the purposes of mutation was already pending consideration and that was yet to be decided. But as far as the fact of the plaintiffs/appellants, being in possession of the property, that was the finding recorded in favour of the plaintiffs, while concluding its finding on appreciation of evidence recorded on issue No. 1, which is quoted hereunder;-

**pwWfd oknxzLr lEifRr ds LokfeRo dks ysdj ds i{kdkjksa ds e/; jktLo U;k;ky; esa okn fopkjk/khu gS rFkk oknxzLr lEifRr ij oknhx.k dk dCtk gS] blfy, mijksDr lafo{kk ds vk/kkj ij okn&fcUnq la[;k&1 vkaf"kd :i ls oknhx.k ds i{k esa fu.khZr fd;s tkus ;ksX; gSA rn~uqlkj okn&fcUnq la[;k&1 bl lhek rd oknhx.k ds i{k esa fu.khZr fd;k tkrk gS fd oknhx.k fookfnr Hkwfe ij dkfct gSA**

11. But, however, despite of having recorded the findings of possession, being in favour of the plaintiffs, pertaining to the possession, the grant of decree of permanent injunction was declined by the trial Court vide its judgment dated 21.02.2011, by the Court of 1st Additional Civil Judge (Junior Division), Rudrapur, District Udham Singh Nagar, on a premise that on the date when the suit itself was being decided since the revenue proceedings for the purposes of recording the name in the

revenue records, was already pending consideration, whereby the defendants already stood mutated, the said aspect was decided against the plaintiffs. Consequently, on the culmination of the proceedings of the suit by the trial Court by the judgment dated 21.02.2011, the same was put to challenge by the plaintiffs/appellants in an Appeal, preferred by the plaintiffs/appellant being Civil Appeal No. 12 of 2011, and the said appeal too has been dismissed by the Court of learned 3rd Additional District Judge, Udham Singh Nagar, on the same pretext because on the date of the adjudication made in the Appeal dated 03.08.2012, the judgment which is impugned in the present Second Appeal, the defendants already stood recorded in the revenue records. Consequently, this Second Appeal was preferred before this Court and at the stage when the Second Appeal was heard for admission, the coordinate Bench of this Court, by an order dated 01.11.2012, had admitted the Second Appeal, by formulating the following substantial question of law:-

"Whether the court below erred in law in not granting the reliefs to the plaintiff, in view of the fact that all the major findings were in favour of the plaintiff."

No other substantial question of law was formulated or pressed by the parties.

12. The notices were issued to the respondents. The order sheet of the Second Appeal reflects that as per the office report dated 03.12.2012, the respondents were served personally, but they have not put in appearance. Subsequent thereto, the plaintiffs/appellants had filed an application being Application No. 17645 of 2018, by invoking the provisions contained under Order 41 Rule 27, for the purposes of bringing on record the

order which had been later passed by the Revenue Authority in exercise of its revisional powers under Section 219 of the Land Revenue Act, whereby the Appellate judgment, which was rendered by the competent appellate revenue authority under Section 210 of the Act, in favour of the respondents was set aside, and the order of 1995, directing the plaintiffs/appellants to be recorded in the revenue records, on the basis of family settlement dated 25.09.1995 was upheld by the Revisional Court.

13. On perusal of the judgment, which was passed on 14.08.2015, in fact, the Court of Additional Commissioner, Kuman Mandal under Section 219 of the L.R. Act, in Revision No. 13/09-10/70/2012-13, Niranjan Sardar and Another V. Ravindranath and Another, had passed the following orders:-

**mijksDr foospuk ds vk/kkj ij fuxjkuh Lohdkj dh tkrh gSA U;k;ky; [email protected]/kdkjh m/keflaguxj }kjk vihy la0 [email protected]@2007&08 Jh jfoUnzukFk cuke fujatu ljnj vkfn esa ikfjr vkns"k fnukad 16-10-2009 fujLr fd;k tkrk gSA voj U;k;ky; dk vfHkys[k ykSVk;k tk;A ckn xqtjus fe;kn i=koyh nkf[ky nQrj gksA**

14. In a nutshell, if the conclusion which was arrived at by the Revisional Court, is taken into consideration, the Appellate Court's judgment which was rendered on 16.10.2009, in an Appeal, preferred by the respondents, being Revenue Appeal No. 52/37/2007-08, was rather set aside and the order dated 25.09.1995, recording the name of the appellants in Mutation Case No. 30/288 of 1994-95 was upheld. This Court, at the stage of considering the application under Order 41 Rule 27, on 23.11.2020, had passed an order that the said application would be taken into consideration at the stage when the Second Appeal itself is heard on its own merits. However, by way of an extreme measure of precaution, while passing an order on the application under Order 41 Rule 27, this Court has directed the

plaintiff/appellant to take fresh steps to serve the respondents and as per the office report, the appellant has taken steps on 29.11.2018, and yet again, there is an office report dated 07.02.2019, that the respondents though have been served personally, but still they have not appeared, before the Court, till date and hence the Second Appeal was directed to proceed ex parte against them by way of an order dated 23.11.2020.

15. The Second Appeal was addressed by the learned counsel for the appellants Mr. J.C. Belwal, on the substantial question of law, as was framed by the coordinate Bench of this Court on 01.11.2012, already referred above. In a nutshell, if the entire controversy and the scrutiny of the impugned judgments, which are the subject matter of challenge before this Court, for the purposes of grant of decree of permanent injunction, is taken into consideration, the denial of the same was on the ground that the Mutation Appeal, under Section 210, which was preferred by the defendants/respondents before the Appellate Court, since has set aside the mutation order of the plaintiffs/appellant, the Court had kept the said issue of ownership in suspension and the Courts had held while deciding issue No. 1, that the same would depend upon the decision which was to be rendered by the Revenue Court, as to who is the owner with regard to the respective share as has been settled between the parties on the basis of family settlement, already referred above. In the light of the aforesaid order, passed by this Court, earlier and having considered the application under Order 41 Rule 27, the said decision which had been rendered by the learned Revisional Court on 14.08.2015, had been settled in favour of the plaintiffs/appellants, and consequently, the issue no. 1, which was the foundation of deciding the judgments concurrently, against the plaintiffs/appellants for denying the decree of injunction stands

overridden by the findings which had been recorded by the learned Revisional Court, where the mutation of the plaintiffs/appellants, has been upheld and consequently as a result thereto, I am of the view that the plaintiffs/appellants, would be deemed to be the owners of the disputed property, and the share, so far as the order dated 25.09.1995, recording them as to be the owners of the property in the revenue records is sustained in the eyes of law.

16. In view of the judgment which was rendered by the Court of the Additional Commissioner, Kumaon Mandal on 14.05.2015, which was the subject matter of consideration by the learned trial Court, while deciding the point of determination framed under Order 41 Rule 31 by the learned Appellate Court and the issue No. 1, which was decided by the learned trial Court, since had derived there reasoning of not upholding the title of the plaintiffs/appellants on the basis of the fact that the proceedings of mutation was pending consideration, since it has now already been decided by the Revisional Court, in favour of the plaintiffs as such they are now held to be the owners of the property in question and thus they would be entitled to grant for a decree of permanent injunction, because otherwise, the finding which had been recorded concurrently by both the Courts below, with regard to the fact of possession being that with the plaintiffs/appellants has been affirmed concurrently by both the Courts below and consequently as a result of the Revisional Court's order, the title too now stands vested with the plaintiffs/appellants and hence the substantial question of law, as framed by the learned trial Court stands answered in favour of the plaintiffs/appellants.

17. Consequently, the Second Appeal is allowed and the judgments, rendered by both the Courts below are hereby

quashed. The suit of the plaintiffs for the grant of decree of permanent injunction is hereby decreed and as a consequence thereto the defendants/ respondents are restrained from interfering in the exclusive and peaceful possession of the appellants over the property lying in khatoni No. 328 and khasra No. 558 i.e. the disputed property in the plaint.

18. A decree of permanent injunction is granted in favour of the plaintiffs/appellants in relation to the property as described in para 3 of the plaint, constituting to be a property lying in khatoni No. 328 and khasra No. 558, having an area of 1.606 hectares situated in Tehsil Gadarpur, District Udham Singh Nagar.

19. Accordingly, the Second Appeal stands allowed.

(Sharad Kumar Sharma, J.) 22.02.2021 Mahinder/