Birla Institute Of Scientific ... vs Arun Kumar
2023 Latest Caselaw 2312 UK

     IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
               Second Appeal No. 76 of 2023

Birla Institute of Scientific Research Branch Bheemtal
through its Director Manager
                                  ......Appellant/Defendant
                          Versus

Arun Kumar                           ........Respondent/plaintiff
Present:- Mr. B.D. Upadhyaya, Senior Advocate assisted by Mr. Sunil
Upadhyaya, proxy counsel for Mr. Tushar Upadhyaya, counsel the
appellant.
Mr. Siddhartha Singh, counsel for the respondents.

                                                 Dated : 18.08.2023
Hon'ble Vivek Bharti Sharma, J. (Oral)

Present second appeal is preferred under

Section 100 of the Code of Civil Procedure, 1908, is

directed against the judgment and decree dated

31.03.2023, passed by 2nd Additional District Judge,

Nainital in Civil Appeal No. 7 of 2018, whereby appellate

court dismissed the first appeal and upheld the judgment

and decree dated 25.11.2017, passed by the trial court

thereby decreeing the suit in Civil Suit No. 86 of 2007 in

favour of respondent/plaintiff.

2. Brief facts of the case are that the

respondent/plaintiff filed a suit for permanent injunction

and easement right in the court of Civil Judge (Junior

Division), Nainital against the appellant/defendant, as

Civil Suit No. 86 of 2007. Along with the plaint, an

application under Order 39 Rule 1 and 2 of C.P.C. for

grant of interim injunction was also filed by the

respondent/plaintiff. The appellant/defendant filed the

written statement and denied all the allegations

contained in the plaint. The oral and documentary

evidence were adduced by the parties and after

completion of the evidence, the trial court by the

impugned judgment and order dated 25.11.2017 was

partly allowed the said suit.

3. Feeling aggrieved by the same, the

appellant/defendant filed the Civil Appeal No.7 of the

2018 wherein the 1st Appellate Court upheld the

judgment dated 25.11.2017 by dismissing the appeal vide

judgment and decree dated 31.03.2023. Hence, the

present second appeal.

4. Heard learned counsel for the parties and

perused the impugned judgments, memo of appeal and

documents filed therewith.

5. Counsel for the appellant/defendant would

submit that the judgments of the trial court as well as the

First Appellate Court are bad in the eyes of law for the

reasons that the trial court and the First Appellate Court

grossly erred in not appreciating the fact that the

respondent/plaintiff has miserably failed to state in his

plaint that he has unobstructed access and right to way

through the land i.e. Khasra No. 1239 of the appellant for

reaching his Khet No. 1240l, 1248, 1250, 1251 situated

at Village Aanu, Tehsil & District Nainital for the last 20

years from the date of filing of the plaint; that, the trial

court has erred in law in framing the Issue No. 1 i.e. as to

whether the respondent/plaintiff has Bhoomidhari

transferable rights in agriculture land in possession of

Khet No. 1240l, 1248, 1250, 1251 situated at Village

Aanu, Tehsil & District Nainital, if yes it's effect?; that, this

issue could not have been decided by the trial court for

the reason that the same is barred under Section 331A of

U.P. Zamindari Abolition and Land Reforms Act, 1950 (in

short "U.P.Z.A. & L.R. Act"); that, as per the provisions of

U.P.Z.A.L.R. Act, this issue could have been decided by

the Revenue Court only. He would further submit that

the trial court and the First Appellate Court further erred

in not appreciating the fact that the appellant/defendant

had also erected a Gate on the property in question which

was purchased by it in the year 1987, however, he

admitted that this plea was not taken by appellant in its

written statement before the trial court.

6. Perusal of the plaint annexed with the

memo of appeal shows that it is nowhere stated in the

plaint that for the last 20 years from the date of filing of

the plaint, the respondent/plaintiff had been using the

access as right of way through Khet No. 1239 of appellant

for reaching his Khet No. 1240l, 1248, 1250, 1251 Village

Aanu, Tehsil & District Nainital. However, in Paragraph

no. 6 of the plaint, it is specifically stated that

respondent/plaintiff had been cultivating his fields

from the time of his forefathers by crossing through

Khet (fields) of the appellant/defendant because there

is no access to any Khet in the villages without

crossing through the field of others, and therefore,

this easement right is available in practice.

7. Counsel for the appellant/defendant would

rely upon a judgment of Hon'ble Supreme Court in the

case of "Justiniano Antao and others vs. Smt. Barnadette

B. Pereira" (2005) 1 SCC 471. This Court respectfully

perused this judgment. Relevant portion of paragraph 10

of the judgment (Supra) is extracted hereunder:-

"We have gone through the three judgments i.e. trial

court, first appellate court and that of the High Court. We

have gone through the evidence adduced. From this, it is

more than clear that there is no specific averment in the

plaint or in the statement of the witnesses showing that this

access from the land of the defendants was used as of right

for the last 20 years. The evidence very categorically shows

that the plaintiff has an access on the south east side and

this was being used by her for a long time. It was pointed

out that only in the year 1984 the plaintiff has started using

the access through the property of the defendants. It is also

admitted that the defendants were during that time on

board of ship and as soon as they came and saw the use of

their land by the plaintiff, they put obstructions to it.

Therefore, it is clear that it is not the case that the plaintiff

has been using the access as of right through the property of

the defendants for more than 20 years."

8. Perusal of the judgment (Supra) clearly reveal

that the time period of 20 years has to be stated by the

plaintiff in the case. However, this Court is of the

considered view that, though, respondent/plaintiff has

not used words "20 years" in plaint but in Paragraph no.6

of the plaint, the respondent/plaintiff clearly stated that

the respondent/plaintiff had been using the right to way

through Khet No. 1239 the land of the appellant/defendant

since time of his forefathers as this was the practice in the

villages.

Naturally the age and time of his father and

grandfather is always more than 20 years. As it is

specifically stated in the plaint that the access and

easement right to cross through the Khet (fields) of the

appellant/defendant is from the time of his forefathers

then that period is always more than 20 years. Therefore,

for merely not writing the averment that this period is

more than "20 years" would not defeat the case of

respondent/plaintiff when holistic implication of words

used is more than twenty years.

9. The second point raised by the counsel for the

appellant/defendant is that the issue no. 1 whether the

respondent/plaintiff is owner of the Khet No. 1240, 1248,

1250, 1251 Village Aanu, Tehsil & District Nainital, the

said issue has wrongly been decided by the trial court as

Civil Court did not have jurisdiction to decide the same,

rather, it should have been decided by the Revenue Court

as per provisions of Section 331 of the U.P.Z.A. & L.R. Act

1950.

The argument of the counsel for the

appellant/defendant is that the aforesaid issue is barred

by provisions of Section 331A of the U.P.Z.A. & L.R. Act,

1950. However, this Court is of the opinion that deciding

factor for jurisdiction of the Revenue Court is not the

issue framed, but, the suit in totality.

The perusal of the relief clause in plaint reveals

that the relief is mainly for the permanent injunction that

as the respondent/plaintiff has easement right to have

access to his Khet Nos. 1240l, 1248, 1250, 1251

situated at Village Aanu, Tehsil & District Nainital

through the Khet No. 1239 of appellant, therefore, the

appellant/defendant be restrained from creating

obstruction in right to way and access of

respondent/plaintiff. This suit is not to decide the

ownership or possession or for any purpose enumerated

in Column 3 of Schedule II of U.P.Z.A. & L.R. Act, 1950.

10. It is pertinent to note that the two conditions

must be satisfied before the question of jurisdiction can

be raised before an appellate or revisional court. Firstly,

the objection must have been taken before the trial court

at the earliest stage and secondly, the party must show

that there has been failure of justice on account of the

suit being tried by the Civil Court. If either of the two

conditions are not fulfilled it is not open to party to raise

the question of jurisdiction before appellate Court or the

revisional Court and a decree or order passed by the Civil

Court shall be valid notwithstanding the provisions

contained in Section 331 of the Act.

11. It is not the case of appellant/defendant that

the suit not being referred to Revenue Court has caused

any failure of justice. It is pertinent to note, that

appellant/defendant itself has stated in its written

statement that on the land purchased by it buildings and

hostel etc. have already been constructed. This means

that the property in question is no more being used for

any agriculture purpose.

Therefore, this Court is of the view that the trial

court had jurisdiction to decide the said issue, therefore,

the arguments of the counsel for the appellant/defendant

is not sustainable in the eyes of law. Hence, no ground is

made out to admit the appeal.

12. Learned counsel for the appellant/defendant

has not been able to show any illegality or perversity in

the impugned judgment passed by the first appellate

court which may give rise to any 'substantial question of

law' warranting adjudication by this Court in the second

appeal. Since no 'substantial question of law' is shown to

have arisen, the appeal is liable to be dismissed at the

admission stage.

13. In view of the above discussion, the appeal

deserves to be dismissed and the same is hereby

dismissed in limine.

(Vivek Bharti Sharma, J.) 18.08.2023 Mamta