Court No. - 53
Case :- SECOND APPEAL DEFECTIVE No. - 273 of 2019
Appellant :- Gurudeen And 2 Others
Respondent :- Om Prakash
Counsel for Appellant :- Pawan Kumar,Sanjay Kumar Srivastava
Hon'ble Pankaj Bhatia,J.
Certified copies of the orders dated 1.9.2016 and 12.9.2016 filed through supplementary affidavit are taken on record.
Civil Misc. Delay Condonation Application No. 1 of 2019 In the delay condonation application, this Court had directed service of notice on the opposite party. The Office report dated 28.11.2019 states that the notices sent through ordinary post have been served personally, however, no one is present on behalf of respondent despite sufficient service.
There is a delay of about 170 days in filing the second appeal. In support of the application for condonation of delay, it has been stated that on account of extreme poverty the appellants did not have the litigation expenses and as such there was a delay in filing the appeal.
The cause shown is sufficient. The delay in filing the appeal is condoned.
The delay condonation application is allowed.
Memo of Appeal The present appeal has been filed challenging the judgement and order dated 24.10.2018 passed by the District Judge, Maharajganj, whereby the Civil Appeal No. 18 of 2016 preferred by the appellants was dismissed. The said Appeal No.18 of 2016 was preferred against the judgement and order of the Civil Judge (Junior Division)/F.T.C., Mahrajganj dated 1.9.2016, whereby the Suit No. 215 of 2007 filed by the respondent was decreed and an injunction was granted to the plaintiff-respondent herein.
The respondent filed Suit No. 215 of 2007 seeking a permanent injunction for removing the huts of the defendant-appellants, raised on the Arazi No. 221 purchased by the respondent by virtue of a sale deed.
The appellants herein filed their written statement and denied the allegations mainly on the ground that the property was different and distinct from the property mentioned in the suit and secondly claimed that by virtue of Section 123 of the U.P.
Z.A. & L.R. Act, the petitioners' title has been perfected by the statute and thus claimed that the suit was liable to be dismissed.
The Trial Court vide its judgment and order dated 1.9.2016 decreed the suit holding that the plaintiff is the rightful owner of the property in question and the construction of the huts is without any title in favour of the appellants hererin. He further also relied upon the evidence oral as well as documentary to arrive at the said conclusion.
The said judgment and order dated 1.9.2016 was challenged by the appellants herein by filing Civil Appeal No. 18 of 2016 before the District Judge, Maharajganj. In the said appeal, it was again pressed that the description of the property in question in the plaint is incorrect and further by virtue of Section 123 of the U.P. Z.A. & L.R. Act, the appellants became owner by operation and statute.
A perusal of the judgment whereby the appeal has been dismissed makes it clear that the Appellate Court duly considered all the submissions and held that neither the sale deed of the respondent has been challenged nor any steps have been taken for getting the rights declared through any Court of law. The Appellate Court further held that the such declaration, if any, could have been granted by the Revenue Court which has not been done at the instance of the appellants. The Appellate Court further recorded that the construction of the huts by the appellants was without any legal authority. The entire documentary as well as the oral evidence was appraised by the Appellate Court while passing the judgment dated 24.10.2018 (corrected on 30.10.2018).
There is nothing on record to demonstrate that any legal or otherwise error has been committed by the Courts below in rendering the judgments. No question of law, much less substantial question of law arises in the matter. The substantial questions of law as pleaded in the memo of appeal do not arise, as such the appeal is devoid of merits and is dismissed.
Order Date :- 29.11.2019 SR