Bhagwan Singh Alias Bhagwanu vs Balma Bhandari
2022 Latest Caselaw 1706 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                     Second Appeal No. 53 of 2022

Bhagwan Singh alias Bhagwanu                         .....Appellant.

                                       Versus
Balma Bhandari                                       .... Respondents

Present :
Mr. Arun Pratap Shah, Advocate, for the appellant.


                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

In relation to a property more aptly described in the plaint, which was said to be lying in Khata No. 293, with regard to the revenue entries recorded in 1417 to 1422 fasli. The plaintiff has contended, that the plaintiff has got a bhumidhari rights over Khasra No. 5040, lying in village Chilyali, Tehsil Chilyalishod, District Uttarkashi, which was a non-ZA land.

2. According to the Khatuni Khata No. 85, which relates to khasra No. 4842/2, over which, there existed a construction, as described in the plaint map by figure EFGH & ABCD. It was contended that the same may be demolished and the possession, status quo ante may be maintained.

3. Further a degree of permanent injunction, was sought directing the defendant, to be injuncted from their act of wrongful interference over the property lying in khasra No. 5040 and the construction, which has been existing on it.

Later on, the relief was amended by incorporation of relief made by virtue of an amendment carried on 28th August, 2014. The relief as sought in the plaint, which was instituted on 23rd May, 2012, is extracted hereunder :-

(क) अनुदेशा�क िनषेधा�ा की िडक्री इस अमरको पा�रत की जाय िक प्रितवादी �ारा ग्राम-िच�ाली, तह- िच�ाली, िजला-उ�रकाशी को

उ�हरण खतौनी खाता सं�ा-293, फसली - 1417 से 1422 म� दज� वािदनों की भूिमधरी भूिम के खसरा सं�ा-5040 व ग्राम िच�ाली, तह) िच�ालीसौड़, िजला-

उ�रकाशी के नॉनजेडए खतौनी खाता सं�ा-85 म� दज� खसरा सं�ा-4842/2 पर िकये गये िनमा�ण िज�� नजरी न�ा प्रिश� के म� क्रमशः अ�र E.F.G.H च.

A,B,C,D अ�रों से िघरा प्रदिश�त िकया गया है। को �ायालय �ारा िनधा��रत अविध के अ�ग�त �� कर वािदनों की भूिम की �स्थित को पूव� �स्थित म� कर देव�

व यिद प्रितवादी ऐसा नहीं करता है तो प्रितवादी के �य पर �ायालय की ऐज�सी

�ारा उ� िनमा�ण को �� कर वािदनी की भूिम को पूव� �स्थित म� कर िदया जाय। vkSj ifroknh }kjk nkoh Hkwfe ftls nkos ds lkFk is"k utjh uD"kk ifjf"k'V 'd' esa v{kj EFGH o ABCD v{kjksa ls f/kjk iznf"kZr fd;k x;k gS] dk dCtk oknhuh dks fnyk;k tk,A

(3) स्थाई िनषेधा�ा की िडक्री प्रितवादी के िव�� इस अमरको पा�रत

िकया जाय िक प्रितवादी �ारा वािदनों के िम��यत के खसरा सं�ा-5040 पर िनमा�णाधीन भवन िजसे नजरी न�ा प्रिश� क म� अ�र E,F,G,H व पीली रोशनाई

से प्रदिश�त िकया गया है, पर िनमा�ण काय� करने से व उ� खसरा न�र के बचे िह�ा भाग पर का� करने से व खसरा सं�ा-4842/2 पर िकसी भी प्रकार से का� करने, क�ा करने व भिव� म� िकसी भी प्रकार के िनमा�ण करने से �यं अथवा अपने प�रवारजनों, ऐजे�ों मजदूरों आिद के �ारा िकसी भी प्रकार की

दखल�ाजी, धांधलबाजी िनमा�ण करने व क�ा करने से सदाकाल के िलये बाज रहे ।

(ग) खचा� मुकदमा व अ� अनुतोष जो �ायालय श्रीमान मुनािसफ समझे की िड�ी ।

4. The proceedings of the Suit was contested by the defendant/appellant, herein, by filing a written statement,

wherein, various contentions have been raised, except for the contention pertaining to the sustainability of the proceedings of the Suit, in view of the bar created by Section 209 to be read with Section 210 of the U.P. ZA and LR Act, as well as the bar which was alleged to be created by Section 331 of the U.P. Z.A. & L.R. Act, nor it was a case, which was ever pleaded in the written statement.

5. Be it so. Whatsoever, the pleadings have been raised before the learned Trial Court, the learned Trial Court had framed the following issues:-

"1& D;k okfnuh [kljk la0&5040 jDok 0-016 gS0 dh Hkwfe/kj] ekfyd] dkfct gS \ ;fn gka rks izHkko \ 2& D;k okfnuh dks [kljk la0&[email protected] jDok 0-005 gS0 lu~ 1996 iV~Vs ij Lohd`r gqbZ \ 3& D;k izfroknh us [kljk la0&5040 rFkk [email protected] ij voS/k vfrØe.k dj Hkou fuekZ.k fd;k \ 4& vuqrks"k \"

6. This Court feels it necessary to observe at this juncture itself, that even at the stage of formulation of the issue, the wisdom, which the defendant had, they did not pray to invoke Order 14 Rule 3 and 4 of the CPC, for getting an additional issue framed pertaining to the maintainability of the proceedings of the Suit and rather has proceeded to contest the Suit based on the issues, which were framed by the Trial Court, without venturing to address the Courts below on the issue of maintainability of the Suit.

7. During the pendency of the proceedings of the

Suit, a Survey Commission was appointed by an order of the Trial Court dated 11th December, 2015, but the Survey Commission thus appointed could not submit the report, because there was no specific demarcation, which could be possible to be made due to non fixation of the fixed points as per law of survey applicable, in civil proceedings.

8. The Suit proceeded on merits and ultimately, the Court of Civil Judge (Junior Division) Uttarkashi, by the judgement dated 1st August, 2017, had decreed the Suit.

9. Being aggrieved against the said judgement of 1st August, 2017, the defendant/appellant has preferred Civil Appeal, under Section 96 of the CPC, and what is relevant to point out at this stage too, that even at an appellate stage too, no such question, as it has been formulated by the appellant in the present Second Appeal to be answered as to be a substantial question of law was ever sought to be pressed into at any stage even by invocation of the provisions contained under Order 41 Rule 31 of the CPC.

10. In fact, the Appellate Court, while exercising its powers under Order 41 Rule 31, had formulated the following point of determination to be answered, which is extracted hereunder:-

"1& D;k [email protected] [kljk la0&5040 jDok 0-016 gS0 dh Hkwfe/kj] ekfyd] dkfct gS vkSj D;k [email protected] dks [kljk la0&[email protected] jDok&0-005 gS0 lu~&1996 iV~Vs ij Lohd`r gqbZ \ rFkk D;k

[email protected] us [kljk la0&5040 rFkk [email protected] ij voS/k vfrØe.k dj Hkou fuekZ.k fd;k gS \"

11. Even at this appellate stage, no point of determination was attempted to be formulated, as it has now been pressed in second appellate stage. Ultimately, the Appeal was contested on merits and the same was dismissed by the Court of District Judge, Uttarkashi, by the impugned judgement dated 17th July, 2021. Hence, this present Second Appeal, which was instituted before this Court on 17th July, 2021, on the following substantial question of law:-

"1. Whether the learned first appellate court as well as the learned trial court were justified in not considering the commissioner's report wherein it was stated that the no fixed points could be found on the spot to identify the suit scheduled property in dispute. The said report of commissioner forms evidence and become the part of record as per order 26 Rule 10 of C.P.C. and thus suit of the respondent/appellant is liable to dismissed.

2. Whether the learned first appellate court as well as the learned trial court were justified in taking cognizance of the suit of the respondent/plaintiff despite of the fact that in the lease deed in clause 4(b) it is clearly stated that every dispute, difference of question which may at any time arise out or in respect of this deed or subject matter thereof shall be referred to the Commissioner, Garhwal Division Pauri and whose decision thereon shall be final thus any dispute with regard to Khasra No.4842/2 shall be referred to the Commissioner Garhwal and the Civil Court is not having any competence to deal with the matter.

3. Whether the learned first appellate court as well as the trial court were justified that Civil Court is having no jurisdiction and competence to decide the matter regarding possession of Z.A. land as same is barred by the section 331 and 209 of U.P.Z.A.L.R. Act 1950 therefore, relief No.1 of the suit with regard to Z.A. Khatuani Khata No. 293 Fasli 1417- 1422 having khasra No. 5040 is not cognizable by the Civil Court but only by the revenue court .

4. Whether the learned first appellate court as well as the learned trial court was justified in not considering the fact of possession of appellant/defendant and consequently the suit of the respondent/plaintiff is beyond the prescribed period of limitation and thus barred by the limitation as the possession of the appellant/defendant is on the suit property prior to year 1991."

12. In fact, if the substantial question of law, which has been formulated by the learned counsel for the appellant in the present Second Appeal, more precisely, the counsel for the appellant has argued on the substantial question of law 2 & 3, which would entail a consideration of the impact of Sections 331 and 209 of the ZA and LR Act, which has been agitated for the first time by the appellants before this Court in the Second Appeal, by formulation of the substantial question of law, which was alien question to the proceedings before both the Courts below. Because these question requires consideration of mixed question of facts and law and cannot be raised for the first time in the Second Appeal.

13. Hence, I am of the view, that as far as question Nos. 2 and 3 are concerned, that cannot be gone into at the stage of Second Appellate stage under Section 100 of the CPC, where the Court will have to confine itself, within the ambit of the pleading and evidence led by the parties and the issue which had been decided by both the Courts below, based on the pleading and the evidence, which was raised by the parties in the concurrent proceedings, which were held before the Trial Court and Appellate Court, and a new question altogether, which entails a consideration of mixed question of fact and law could be enforced by way of a

substantial question of law, for the first time, at second Appeal Stage.

14. The learned counsel for the appellant has also harped upon the first substantial question of law in his arguments, in relation to as to what bearing would the provisions contained under Order 26 Rule 10 of the CPC, would have if in an event of non consideration of the Survey Commission report, which constitutes to be a part of evidence to be considered by the Court once it is submitted before it. Order 26 Rule 10 of the CPC is extracted hereunder:-

"10. Procedure of Commissioner.--(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.--The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

15. In fact, if the provisions of Order 26 Rule 10 of the CPC, is taken into consideration, it lays down a procedural law, but not a substantive law. It relates to the procedure, which is expected to be adopted by the Commissioner, for the purpose of conducting the local inspection on the direction or orders of the Court, and the manner in which, the deposition in support or in opposition to the report could be scrutinized by the Trial Court and the aspect with regard to the necessity of examination of the Survey Commissioner, who has conducted survey commission in order to enable the Court to satisfy itself, to the very propriety of the contents and basis of the report submitted by the Survey Commission. Order 26 Rule 10 of the CPC, according to my view, is procedural in nature and not a substantive provision, creating any vested rights, its only a guiding provisions regulating the procedure of survey commission.

16. Hence, it cannot ever constitute, as to be a substantial question of law to envisage, that the proceedings before the Trial Court suffer from the vices of non compliance of Order 26 Rule 10 of the CPC.

17. There is another reason for not to accept the argument of the learned counsel for the appellant, because the finding, which has been recorded by the learned Trial Court, while deciding issue Nos. 1 and 2, a specific finding, in relation to the consideration of the report has already been recorded by the learned Trial Court in its para 25 of the

judgment, as to what extent and to what effect would it have over the proceedings of the Suit, it is altogether entirely a different issue.

18. But, it would be absolutely a misnomer to argue, that the impact of the report was not considered by the learned Trial Court while deciding the Suit itself on its merit.

19. In that view of the matter, this Court considers the controversy from yet another perspective. The substantial question of law 2 and 3, which has been framed by the learned counsel for the appellant, pertaining to the effect of Section 209 and the bar created by Section 331 of the Z.A. & L.R. Act, it ought to have been raised by the plaintiff or the defendant as the case may be at the first available instance, when the appellant had disclosed his defence by filing a written statement and having not availed the said opportunity and having proceeded to actively participate in the proceedings, he would be refrained to raise a question relating to the impact of Sections 209 and 331 of the U.P. Z.A. & L.R. Act, after being concurrently unsuccessful in the proceedings before both the Court below.

20. In view of the aforesaid, this Court is of the view, that the substantial question of law as framed by the learned counsel for the appellant in the Memorandum of Appeal, and that too, for the first time, before the second Appellate Court, does not engage consideration because, all the substantial questions of law would entail a consideration of facts and law both and since the fact has not been sought to be relied and

replied too in the proceedings before the Court below by the defendant, he cannot take the advantage of his own shortcomings in contesting the proceedings before the Court below, because had it been a converse situation, if the Suit was dismissed, this Court is of the view that the appellant might not even argued the sustainability of the Suit, as it has now been argued at this second appellate stage.

21. In that view of the matter, the Second Appeal lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 08.06.2022 Shiv