Court No. - 53
Case :- SECOND APPEAL No. - 1055 of 2019 Appellant :- Agam Lal And 2 Others Respondent :- Vijay Bahadur And 3 Others Counsel for Appellant :- Diwakar Tiwari
Hon'ble Vivek Agarwal,J.
Heard Sri Diwakar Tiwari, learned counsel for the appellants on admission.
This second appeal has been filed by the legal heirs of the plaintiff being aggrieved by judgment and decree dated 07.08.2019 passed by the Court of Additional District Judge, Room No. 10, Allahabad in Civil Appeal No. 161 of 2014 whereby learned First Appellate Court has affirmed the judgment and decree passed by the Additional Civil Judge (Junior Division), Room No. 7, Allahabad in Original Suit No. 836 of 2005 passed on 25.08.2014.
It is not in dispute that plaintiffs have purchased a piece of land measuring 1 biswa in Survey No. 312 which was re-numbered as 302 i.e., about 1360 sq. feet in the year 1967. Plaintiffs filed a suit for grant of permanent injunction against the defendants claiming that defendants are trying to encroach upon the land on which he is growing vegetables as such land is adjacent to the abadi. It is also mentioned in the plaint that the defendants are powerful persons and they are threatening him to forcefully occupy his piece of land though they have no title or interest in the said land. It is also mentioned that on 23.04.2005, at about 8:00 am, defendants with the help of the helpers and the labourers tried to forcefully take into possession of piece of land belonging to the plaintiff and tried to construct foundation, when plaintiff's family members and the villagers stopped the defendants from doing such illegal work then defendants left the place threatening them to illegally occupy the place in near future.
In such backdrop, plaintiffs prayed for a relief that defendants be prohibited from causing interference in the possession and ownership of the land contained in Aragi No. 302, Rakba 0.011 hectares situated at Bhasundar Kala, Pargana Khairagarh, Tehsil Meza, Janpad Allahabad and also not to change its nature.
Learned Trial Court after recording the findings on the basis of the statements given by PW-1 that there exist a construction over the said land for the last several years and only on part of the plot, they are growing vegetables being contradictory to the pleadings on record and also recording a finding that plaintiffs never pleaded about construction nor produced any revenue records to show the nature of occupation on the land in question, dismissed the suit for grant of permanent injunction.
Aggrieved by such judgment and decree, appellants filed first appeal before the learned Additional District Judge wherein learned Additional District Judge has affirmed the findings as plaintiffs were required to stand on their legs. Plaintiffs failed to prove and plead that there exists construction on the part of the land for several years and defendants are in possession of such constructed area. It recorded a finding on the basis of the statement of PW-1, Lalji who has admitted that there is a permanent construction on the disputed land. He also admitted that there are two rooms on the disputed land surrounded by a boundary wall on all four sides. He admitted that he is not indulging in any agricultural operations but a house is standing on disputed land. He admitted that only on 1/4th portion of the disputed land, he is growing brinjals, tomatoes etc. It has also come on record that the said land is part of the abadi as has been noticed by the learned First Appellate Court from the revenue records. Thus recording the findings, plaintiffs failed to plead correct facts and also failed to seek relief in the nature of return of possession from the defendants who were admittedly in possession of the suit property prior to the date when plaintiff alleged that cause of action had accrued to him to file a suit, dismissed the appeal and affirmed the findings recorded by the Trial Court.
After hearing the counsel for the appellants and going through the record, failure of the plaintiffs not to plead the correct facts and then asserting during the course of the arguments that evidence was led though admittedly no pleading was put forth in the plaint that defendants were in possession of portion of the property on which permanent construction was raised, has failed to approach the Court with clean hands to seek equitable relief of grant of permanent injunction. Thus, the Courts below have not committed any irregularity or illegality in dismissing the suit inasmuch as prima facie, plaintiffs have not approached the Court with clean hands. There is no balance of convenience in favour of the plaintiff nor he could prove the factum of irreparable loss.
Accordingly, the appeal against concurrent findings of facts deserves to be dismissed and is dismissed as it does not give rise to any substantial question of law.
Order Date :- 26.11.2019 Vikram/-