Uttarakhand High Court
3 January vs Pandit Purnanand Shiksha Samiti & ... on 3 January, 2025
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
2025:UHC:92
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 32 of 2023
03 January, 2025
Maharaj Singh & Another ...Appellants
Versus
Pandit Purnanand Shiksha Samiti & Others
...Respondents
With
Second Appeal No. 55 of 2023
Maharaj Singh & Another ...Appellants
Versus
State of Uttarakhand & Others ...Respondents
Present:-
1. Mr. M. S. Tyagi, learned Senior Counsel assisted by Mr. Ramji
Shrivastava, counsel for the appellants.
2. Mr. Siddhartha Singh along with Mr. Vipul Sharma, learned counsel
for the respondent no.1/defendant no.7.
3. Mr. A. D. Tripathi, counsel for the respondent nos. 3 & 4.
4. Mr. Raveendra Singh Bisht, counsel for the respondent nos. 5 & 6.
5. Mr. I. P. Kohli, learned Standing Counsel for the State.
Hon'ble Vivek Bharti Sharma, J.
Both these second appeals are being heard
together as the questions of law and facts involved in
both these appeals are same.
The parties to these second appeals are
being referred as they appear in the array of parties
in the memo of appeal in Second Appeal No. 32 of
2023.
2025:UHC:92
2. These above two second appeals are arising
out of the Original Suit No. 77 of 2002, in which the
impugned judgment and decree dated 12.04.2016
was passed by the Civil Judge (Junior Division)
Kashipur, District Udham Singh Nagar, whereby the
suit of the appellants/plaintiffs for permanent
injunction was dismissed and counter-claim of
respondent no.1/defendant no.7 for possession of the
suit property was decreed against the
appellants/plaintiffs, and the judgments in two Civil
Appeal Nos. 26 & 27 of 2016 dated 30.01.2023
passed by the 1st Additional District & Sessions
Judge, Udham Singh Nagar.
3. By the impugned judgments dated
30.01.2023, the learned 1st Additional District &
Sessions Judge, Udham Singh Nagar confirmed the
judgments of dismissal of suit of permanent
injunction & decreeing the counter-claim of
respondent no.1/defendant no.7 for possession of
suit property.
Submissions on behalf of the Appellants
4. Mr. M. S. Tyagi, learned Senior Counsel
assisted by Mr. Ramji Shrivastava, counsel for the
appellants would submit that the learned trial court
and the Appellate Court grossly erred in not
appreciating the fact that the Division Bench of this
Court in its judgment in Writ Petition (PIL) No. 1197 of
2005 together with Writ Petition (M/S) No. 1125 of
2007 (Annexure No. 5 to the Second Appeal) had
categorically held in paragraph no. 36 of its judgment
2025:UHC:92
dated 25.11.2008 that the lease granted by the State
Government in favour of the respondent no.4
Shiksha Samiti (respondent no.1/defendant no.7 in
present second appeal) shall be restricted only to the
extent of the area, which was in its possession i.e.
(i) The land ad-measuring 0.016 hectare of Plot No.
363Kha
(ii) Land ad-measuring 0.387 hectare of Plot No. 364
Total area 0.403 hectare of Village Amritpur, Tehsil
Jaspur.
5. He would further submit that the alleged
Lease Deed stated in paragraph no. 21 of the written
statement/counter claim of the respondent
no.1/defendant no.7 has been restricted with the
observation by the Division Bench, in view of the
judgment in Writ Petition (PIL) No. 1197 of 2005, only
to the land 0.403 hectare; that, it was specifically
observed by the Division Bench that the Lease Deed
cannot be given effect to regarding the rest of the
land comprised in Plot No. 363Kha and Plot No. 364 of
Village Amritpur, Tehsil Jaspur as the same is invalid
in view of the provision of Section 107(2) of The U.P.
Kshettra Panchayats and Zila Panchayats Adhiniyam,
1961; that, notwithstanding, this clear observation of
the Division Bench, the trial court erred in not
considering this fact that no decree of possession
could have been passed on the basis of counter claim
of respondent no.1/defendant no.7 on the basis of
this lease deed, which had already been held
inoperative in respect of rest of the land.
2025:UHC:92
6. He would further submit that the counsel
for the respondent no.1/defendant no.7 in the said
Writ Petition (PIL) conveniently concealed the fact
from the Division Bench that the respondent
no.1/defendant no.7 had already filed a counter-
claim in Original Suit No. 77 of 2002 by way of the
counter-claim.
7. He would further submit that no decree of
possession could be passed in favour of the person,
who has no title to the property even if the defendant
is the trespasser of the land; that, in view of the fact
that when the Division Bench of this Court had
already stated in its observation (supra) that the
Lease Deed is restricted only to 0.016 hectare
comprised in Plot No.363Kha and 0.387 hectare in
Plot No. 364 situated at Village Amritpur, Tehsil
Jaspur, then the respondent no.1/defendant no.7 did
not have claim or interest consequently any right to
pray for possession of suit property in the counter-
claim, hence, no decree of possession could have
been passed; that, this point was raised in the first
appeal but the first Appellate Court also failed to
appreciate this position of law.
8. He would further submit that the Writ
Petition (PIL), stated above, neither was filed by the
appellants, nor they were party to that PIL and
another writ petition which was disposed of by the
Division Bench; that, had the appellants been party
to that PIL and connected writ petition, then the
appellants would have brought this fact before the
2025:UHC:92
Division Bench that respondent no.1/defendant no.7
had filed counter claim in the original suit giving rise
to the second appeal.
Hence these Second Appeals.
Submissions on behalf of the respondent
no.1/defendant no.7.
9. Per contra, learned counsel for the
respondent no.1/defendant no.7 would contest the
submissions made by the learned Senior Counsel for
the appellants and would submit that the appellants
have conveniently not disclosed the fact that in
another Original Suit No. 19 of 2002 filed by the
appellants for decree of permanent injunction in
respect of the suit property, the appellants were
held to be the encroachers on the suit property
and their suit for permanent injunction was
dismissed.
10. He would further submit that in present
Second Appeal No. 55 of 2023, the appellants were
directed by this Court vide order dated 28.06.2023
for filing the judgment dated 04.05.2005 passed by
the trial court in Original Suit No. 19 of 2002; that,
the same was not complied with as
appellants/plaintiffs want to mislead the Court by
concealing the fact that appellants/plaintiffs have
been held encroachers in respect of the suit property
in Original Suit No. 19 of 2002 filed by themselves.
11. He would further submit that the
contention of the appellants in respect of non-
2025:UHC:92
consideration of the judgment passed by the Division
Bench of this Court in Writ Petition (PIL) No. 1197 of
2005 dated 25.11.2008 is also misplaced.
12. Learned counsel for the respondent
no.1/defendant no.7 would further submit that in
the trial court, the appellants could not produce any
Lease Deed in the trial court as stated by them in
paragraph nos. 1 & 2 of their plaint, therefore, the
trial court was legally correct in law and fact in not
granting the relief of permanent injunction.
13. Considered and perused the record in the
light of the submissions made by learned counsel for
the respective parties.
14. There is no force in the submission of
learned Senior Counsel for the appellants/plaintiffs
that no decree of possession of the land comprised in
the Lease Deed executed in favour of the respondent
no.1/defendant no.7 by the Government other than
the land which had been restricted by the Division
Bench of this Court in its judgment dated
25.11.2008 in Writ Petition (PIL) No. 1197 of 2005
can be granted.
By its impugned judgment, the trial court
after detailed discussions on the facts and evidence
on record has categorically stated that the judgment
of the Division Bench in above Writ Petition (PIL)
(supra) is considered and lease grant in favour of the
respondent no.1/defendant no.7 can be given effect
to in respect of the land other than the land
2025:UHC:92
restricted by the Division Bench of this Court in its
judgment dated 25.11.2008.
The learned trial court in its impugned
judgment categorically reproduced the relevant part
of the judgment of Division Bench in paragraph no.
34 of its impugned judgment and further observed in
paragraph no. 46 that,
"46. tgka rd izfroknhx.k la[;k&7 dks izkIr gksus okys vuqrks'k dk iz"u gS]
rks okn fcUnq la[;k&7] 9 ds fuLrkj.k ds vkyksd es]a ;g Li'V gS fd izfroknh
la[;k&7 dks iz"uxr Hkwfe f"k{k.k laLFkku pykus gsrq yht ij vkcafVr dh
x;h gS rFkk ekuuh; mPPk U;k;ky; uSuhrky }kjk Writ Petition
No.1197/05, ,oe Writ Petition No.1125/07 esa ikfjr fu.kZ;
fnukad 25-11-2008 esa dfFkr yht iz"uxr Hkwfe [kljk la[;k&363[k ds jdck
0-016 gS0] [kljk la[;k&364 ds jdck 0-387 gS0 dqy jdck 0-403 gS0 xzke
ve`riqj] rglhy tliqj] rd gh lhfer (Restrict) j[kus ds vkns"k ikfjr
fd;s gSA vr% izfroknh la[;k&7 dks ek= iz"uxr Hkwfe ds mijksDr of.kZr
fgLls ij ls] oknhx.k dks csn[ky djus dk vf/kdkj izkIr gSA rnuqlkj
izfroknh la[;k&7 dk Counter Claim vkaf"kd :Ik ls Lohdkj fd;s
tkus ;ksX; gSA"
(in respect of the relief in issue nos. 7 & 9, it is clear that
the respondent no. 1/defendant no.7 was granted the
lease of the land in question for running an educational
institution and the Hon'ble High Court vide judgment
dated 25.11.2008 in Writ Petition (PIL) No. 1197 of 2005
along with Writ Petition (M/S) No. 1125 of 2007 has
observed that lease is restricted to total area of land
0.403 hectare comprised in Khasra No. 363Kha and
364 situated at Village Amritpur, Tehsil Jaspur,
therefore, the respondent no.1/defendant no.7 has
right to get possession of this much land,
consequently, the counter claim can be decreed in
part.)
15. Learned Senior Counsel for the
2025:UHC:92
appellants/plaintiffs would fairly concede the fact
that the Lease Deeds, which the appellants/plaintiffs
have alleged to have been executed in their favour in
the year 1996, were not produced and proved before
the trial court. As these Lease Deeds were the main
anchor for their relief for decree of permanent
injunction, therefore, the same was correctly decreed
to the appellants.
16. Last but not least, the counsel for the
appellants/plaintiffs did not contest the submission
of the respondent no.1/defendant no.7 that in
Original Suit No. 19 of 2002 filed by the
appellants/plaintiffs for identical relief of permanent
injunction, appellants/plaintiffs were held
encroachers on the suit property consequently, that
suit was dismissed.
17. In view of above discussion, this Court is of
considered view that the learned Senior Counsel for
the appellants/plaintiffs could not make out any case
that any substantial question of law arises because
of some patent incorrectness in impugned judgments
or non-application of mind by the trial court and the
First Appellate Court, hence there is no ground in the
present appeals.
18. In such view of the matter, the trial court
rightly dismissed the suit filed by the
appellants/plaintiffs and decreed the counter-claim
of respondent no.1/defendant no.7. More so, the
First Appellate Court being fully convinced with the
findings of the trial court, too rightly dismissed the
2025:UHC:92
appeal.
As such, there is correct concurrent finding
of fact and law against the appellants/plaintiffs,
therefore, this Court is of the opinion that no
substantial question of law arises in these two
Second Appeals.
19. Resultantly, the Second Appeals are hereby
dismissed in limine.
20. No order as to costs.
(Vivek Bharti Sharma, J.)
03.01.2025
Akash
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
AKASH
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=5a2e7119d3eefb9c3389d15c3446ac8c20a28e
181142c2e31d8b803058deb4ec, postalCode=263001,
st=UTTARAKHAND,
serialNumber=27096A1625377537A487DEE49224C89
1823FC6A0334628B21E516047ED4F22F7, cn=AKASH
Date: 2025.01.07 17:10:03 +05'30'
