Uttarakhand High Court
State Of Uttarakhand And Another ... vs Vimal Kumar Poddar And Another on 16 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved on: 16.04.2024
Delivered on: 16.05.2024
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 88 of 2015
State of Uttarakhand and another ..........appellants
Vs.
Vimal Kumar Poddar and another ........ Respondents
Present : Mr. I.P. Kohli, Standing Counsel for the State/appellants.
Mr. Siddhartha Singh, Advocate for the respondents.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The present first appeal is preferred against the
judgment and decree dated 27.11.2014, passed in
Original Suit No.326 of 2008, Shri Vimal Kumar Poddar
and another ("plaintiffs") vs. State of Uttarakhand and
another ("defendants"), by the court of First Additional
Civil Judge (Sr. Div.), Haridwar ("the suit"). By the
impugned decree, the suit filed by the plaintiffs for
declaration and permanent injunction has been decreed.
2. Heard learned counsel for the parties and
perused the file.
3. The facts necessary to appreciate the
controversy briefly stated are as follows: The plaintiffs
filed the suit for declaration of ownership of the disputed
property. [land khewat No.53, Khasra No.246m,
admeasuring 07 Bigha, 12 Bishwa Kham i.e. 1.21 Acre,
situated in Village Sekhupura alias Khankhal, Pargana
and Tehsil Haridwar within the limits of Nagar Palika
Parishad, Haridwar. In its East, pathway and land of Smt.
Aaradhana Jhunjhunwala; in the West river Ganges; in
the North, pathway and in the South, land of Smt.
Aaradhana Jhunjhunwala and land Khewat No.53,
Khasra No.246m, admeasuring 09 Bigha Kham i.e. 1.5
Acre, situated in Village Sekhupura alias Kankhal,
Pargana and Tehsil Haridwar within the municipal limits
of Haridwar. In its East, Uma Maheshwar Trust; in its
West river Ganges; in the North, land of the seller and in
the South, Uma Maheshwar Trust.] The plaintiffs have
also sought permanent injunction.
4. According to the plaintiffs the land Khewat
No.53, Khasra No.246(m) is non-ZA land, situated in
Village Sekhupura alias Kankhal, Tehsil and District
Haridwar. Its total area is 35 Bidha, 07 Bishwa and
13 Biswansi pacca. This land is recorded in the
revenue record in the names of Zamindar and
Khewatdar, as owners. There are many owners of this
land, who are in possession of their respective shares in
the property. Out of this Khewat No.53, a certain portion
was purchased by Uma Maheshwar Trust and the name
of the Trust was recorded in the revenue record.
Subsequently, there were some defects in the map. For its
correction, Uma Maheshwar Trust did file a revenue suit,
which was allowed and the map was corrected.
5. According to the plaintiffs, they purchased
disputed property, which is a part of Khewat No.53, by
two sale-deeds dated 29.12.2005 and 21.08.2006. It was
purchased from the Khewatdar. The respondents have no
rights, whatsoever in the disputed property, but notices
were given by the defendants claiming the disputed
property as their own, which was duly replied by the
plaintiffs. With these and other allegations, the plaintiffs
filed the suit for declaration of their ownership over the
disputed property as well as they sought permanent
injunction restraining the defendants from interfering into
the peaceful possession of the plaintiffs over the disputed
property.
6. The defendants filed Written Statement and
replied the claim of the plaintiffs. It is the case of the
defendants that Khewat No.53 is recorded in the name of
river Ganges by deleting the name of Ram Kishan, Vishnu
Prasad and others. It has been the claim of the
defendants that the disputed property is within the
control of State Government and the plaintiffs or their
predecessors have no concerned with the disputed
property; the disputed property is the part of the riverbed,
which is non-ZA property, which could not be included
into the settlement. It is reserved for Khumbh Mela.
7. It has been the case of the defendants that out
of Khasra No.246, 05 Bigha, 03 Bishwa land is used for
Mayapur Escape Channel and the remaining land of
Khasra No.246(m) lies in the West of Channel, whereas
the plaintiffs wrongly claimed the disputed property as
part of Khasra No.246(m). Objections with regard to the
Uttar Pradesh Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 ("the Act") and other defences were
also taken by the defendants.
8. Based on the pleadings of the parties the
following issues were framed in the suit:-
(1) Whether the plaintiffs are the owners in
possession of the disputed property?
(2) Whether the property is situated in Khewat
No.53, Khasra No.246?
(3) Whether the disputed property is unsettled
land?
(4) Whether the suit is barred by the provisions of
the Section 15 of the Act?
(5) Whether the suit is barred by Order 7 Rule 11
CPC?
(6) Whether the suit is under-valued and the court
fee paid is insufficient?
(7) To what relief, if any, the plaintiffs entitled?
9. In order to prove its case the plaintiffs
examined two witnesses PW1 Kanti Lal Bum and PW2 Raj
Oberoi.
10. The plaintiffs, as per list 8 C-1, have filed 09
documents, which are as under:-
(i) Certified copy of Khewat.
(ii) Photostat copy of Khatoni.
(iii) Certified copy of sale-deed dated 29-12-2005.
(iv) Certified copy of sale-deed dated 21.08.2008.
(v) Photostat copy of Notice dated 04.06.2007.
(vi) Reply of the Notice.
(vii) Photostat copy of a communication of Irrigation
Department dated 20.01.1997.
(viii) A Notice dated 19.07.2008 of the plaintiffs
given to Nagar Palika Parishad, Haridwar, and
(ix) The reply of the Nagar Palika Parishad,
Haridwar dated 21.10.2008.
11. Along with List 57 C-1, the plaintiffs also filed
08 documents namely:-
(i) Certified copy of the Khewat.
(ii) Receipt of Irrigation Charge (Vimal Kumar).
(iii) Receipt of Irrigation Charge (Aaradhana
Jhunjhunwala).
(iv) Electricity Bill (Vimal Kumar).
(v) Electricity Bill (Aaradhana Jhunjhunwala).
(vi) Photostat copy of Suit No.1/1997-98 in the
court of Collector, Haridwar.
(vii) Photostat copy of Case No.1/1997-98, and;
(viii) Copy of sale-deed.
12. On behalf of the defendants, DW1 Virendra
Singh Rana is examined in evidence.
13. The defendants per List 31 C-1 filed copy of
order dated 12-01-2009 of the Prescribed Authority,
Haridwar in Case No.2 of 2009, State of Uttarakhand vs.
Vimal Kumar. The defendants have also filed extract of
Khatoni along with an application 69 C-2.
14. After hearing the parties, by the impugned
judgment and order the court held that the plaintiffs are
the owner of the disputed property. On issue nos.2 and 3,
it was held that the disputed property is situated in
Khewat No.53, Khasra No.246 and it is not unsettled
land.
15. On issue no.4, the court concluded that the
suit is not barred by the provisions of Section 15 of the
Act. The court also held that the suit is not barred by the
provision of Order 7 Rule 11 CPC. Issue pertaining to the
court fee had already been decided by the court on
17.02.2010.
16. Based on the finding recorded from issue nos.1
to 6, the suit has been decreed for declaration and
permanent injunction.
17. In the instant first appeal, on behalf of the
appellants, it is argued that the disputed property is not
identifiable; the river Ganges is co-owner of Khasra
No.246; there has been no partition between them; the
plaintiffs cannot claim right on the property which they
had not purchased. It is argued that the plaintiffs are not
the owners in possession of the disputed property.
18. On the other hand, learned counsel for the
respondents would submit that the plaintiffs have
purchased the property by virtue of sale-deeds; the
plaintiffs are recorded in the Khewats, the record of rights
and boundaries are already disclosed in the sale-deeds,
which is confirmed by the Court Commissioner.
19. Learned counsel for the defendants would also
submit that, in fact, Uma Maheshwar Trust have also
purchased property in Khewat No.53, Khasra No.246.
Subsequently, there were some dispute with regard to
map, which was thereafter, corrected by Uma Maheshwar
Trust by filing a suit. It is argued that the property of
Uma Maheshwar Trust is adjoining to the disputed
property. Therefore, the disputed property admittedly falls
within Khasra No.246 of Khewat No.53.
20. In the instant first appeal, the point for
determination is only one, which is as follows:
(i) Whether the plaintiffs are the owners in
possession of the disputed property?
21. While deciding this issue, the Court shall also
touch upon the question of identifiability of the disputed
property.
22. It is pleaded case of the plaintiffs that the
disputed property, in two parts, were purchased by the
plaintiffs as follows:-
i) By the registered sale-deed dated 29-12-2005,
the portion of the property was purchased from
Smt. Shibbu, widow of Harprashad and;
Mahendra Kumar S/o Amba Prasad.
ii) By the registered sale-deed dated
21.08.2006, a portion of disputed property was
purchased from Pradeep Kumar Mahendru S/o
Late Sukhdev Prasad Mahendru and Mahendra
Prasad Mahendru S/o Amba Prasad.
23. Both these sale-deeds are on record. The sale-
deeds specify the boundaries. In the sale-deed dated 29-
12-2005, the boundaries of the property, purchased by
the sale-deed has been given, which is as follows: In the
East, land of Uma Maheshwar Trust; in the West, river
Ganges; in the North, land of the seller and in the South,
land of Uma Maheshwar Trust.
24. In the sale-deed dated 21.08.2006 also, the
boundaries of the land have been given. According to it: In
its East, pathway and land of Smt. Aaradhana
Jhunjhunwala; in the West, river Ganges; in its North,
pathway and remaining land of Khewat No.53 and in the
South, the land of Aaradhana Jhunjhunwala.
25. In its evidence, PW1 Kantilal Bam has
reiterated the version of plaint. He was cross-examined
and in his cross-examination, he was asked to explain the
boundaries of the disputed property, which he has stated
in page no.3 of his cross-examination.
26. PW2 Raj Oberai has also supported the
plaintiffs' case. He was also asked about the boundaries
of the disputed property, which he revealed in page no.2
of his cross-examination. It corroborates the plaintiffs'
case and the statement of PW1 Kantilal Bam.
27. In fact, DW1 Virendra Singh Rana was also
asked, in his cross-examination, about the boundaries of
the disputed property. He has also corroborated the
plaintiffs case with regard to the position or location of
the disputed property. According to DW1 Virendra Singh
Rana, in the North of the disputed property is a pathway;
in its West - river Ganges and in its East and South,
unsettled land. In page 2 of his cross-examination, in
bottom lines, he has stated that on this unsettled land,
Uma Maheshwar Trust has made an Ashram.
28. It may be noted that there are two Commission
Reports on record; one when the suit was filed and
Commissioner issued. This report is paper no.20 C1/1
and 20 C1/2 on the record of the trial court. This
inspection report has never been confirmed. It cannot be
confirmed. It can only be read subject to the evidence.
The boundaries given in this Commission Report also
corroborates the plaintiffs' case.
29. In the instant case, a Survey Commission has
also submitted his report. The Survey Commissioner
submitted the report No.49 C-2. Objections were invited
on the Survey Commission Report and by the order dated
27.04.2013, the Commission Report has been confirmed,
subject to the evidence.
30. The map given in the Survey Commissioner
Report supports the plaintiffs' case. All the boundaries
are corroborating to the boundaries, as pleaded in the
plaint and as stated by PW1 Kantilal Bam and PW2 Raj
Oberai as well as DW1 Virendra Singh Rana.
31. It is the case of the defendants that the
disputed property is unsettled property. But, no evidence
has been led by the defendants to establish their case. It
is positive case of the defendants that in Khasra No.246,
the Irrigation Department has 05 Bigha, 03 Bishwa land,
which is used for the Escape Channel, which is recorded
as river Ganges at other places.
32. It is a civil case. The standard of proof is based
on the preponderance of probabilities. The plaintiffs have
established the boundaries of the disputed property given
in their sale-deeds and as disclosed in the following
Commission Reports:
1) The Commission Report, which is based
without measurement at the initial stage of the
suit and;
2) Survey Commissioner Report. The Survey
Commissioner has categorically stated that the
disputed property lies in Khasra No.246.
33. In addition to it, the Khewat, which is paper
No.58, records the name of the plaintiffs, after purchase
of the disputed property. The plaintiffs are recorded in the
Khewat.
34. It is admitted that Khewat No.53, Khasra
No.246 is a large piece of land, which has many co-
owners.
35. It has been one plea of the defendants that
Khasra No.246 is in the name of river Ganges. It is true
that Khasra No.246 is in the name of river Ganges, but
entire Khasra No.246 is not in the name of river Ganges.
The entry which is recorded in extracts of Khatoni records
river Ganges on Khasra No.246m, which indicates that
there are other co-owners, as well.
36. DW1 Virendra Singh Rana in his cross-
examination has confirmed that Khasra No.246 has other
Zamindars also and only 05 Bigha, 03 Bishwa land
belongs to the Irrigation Department, on which, Mayapur
Escape Channel is running. If on total land recorded in
the name of Irrigation Department is utilized for Escape
Channel, how and under what circumstances, the
defendants claim their rights over the disputed property?
It is not even shown by the respondents.
37. In view of the foregoing discussion, this Court
is of the view that the disputed property is identifiable
and it has been identified by the plaintiffs. It is Khewat
No.53, Khasra No.246. It has also been proved by the
plaintiffs that they are the owners of the disputed
property. Therefore, this Court concludes on point no.1
that the plaintiffs are the owners in possession of the
disputed property.
38. The court below did not commit any error in
decreeing the suit filed by the plaintiffs. Instant first
appeal has no force. Accordingly, the first appeal deserves
to be dismissed.
39. The first appeal is dismissed.
(Ravindra Maithani, J.)
16.05.2024
Sanjay
