Court No. - 5
Case :- SECOND APPEAL DEFECTIVE No. - 249 of 2020 Appellant :- Hanuman Mandir Jarauli Respondent :- Kanpur Development Authority Counsel for Appellant :- Chandra Shekhar Agnihotri
Hon'ble Saral Srivastava,J.
Heard learned counsel for the appellant.
This second appeal has been preferred by the plaintifff/appellant challenging the judgement and order dated 15.11.2010 passed by the First Additional Civil Judge (Junior Division), Kanpur Nagar in Original Suit No.164 of 2003 (Hanuman Mandir Jarauli, Kanpur Vs. Kanpur Development Authority, Kanpur) and the judgement and order dated 29.01.2020 passed by the Additional District Judge, Court No.12, Kanpur Nagar in Civil Appeal No.110 of 2013 (Hanuman Mandir Jarauli, Kanpur Vs. Kanpur Development Authority, Kanpur).
A suit no.164 of 2003 (Manuman Mandir through its Manager Vs. Kanpur Development Authority, Kanpur, hereinafter referred to as 'KDA') has been instituted by the plaintiff/appellant contending therein that the plaintiff/appellant is owner of Gata No.168, situated in village Jarauli, Post Barra, District Kanpur Nagar. The Hanuman Temple exists on 10 biswa of gata no.168. The plaintiff/appellant prayed for a decree of mandatory injunction directing the defendant/respondent not to interfere in peaceful possession over the property.
The suit was contested by KDA by filing written statement wherein it is averred that total area of gata no.168 was 4 bigha, 12 biswa out of which 3 bigha, 11 biswa, 10 biswansi of gata no.168 was acquired by KDA and the Manuman Temple existed in remaining 10 biswansi of the said gata. It is further pleaded that the award was made on 30.12.1982 and the possession of the land was taken on 20.01.2003.
The trial court on the basis of pleadings, framed as many as seven issues.
The issue no.1 was framed by the trial court as to whether the Hanuman Temple is existing over a part of 10 biswa of gata no.168.
The trial court after appreciating the pleadings and documentary evidence filed by the plaintiff/appellant, particularly, Khasra Paper no.56 Ga returned a finding that Paper no.56 Ga Khasra does not support the case of the plaintiff/appellant. The trial court further held that the plaintiff/appellant has failed to establish his case by documentary evidence, and the witnesses of plaintiff/appellant i.e. PW 1 and PW 2 also failed to establish the case of the plaintiff/appellant. The trial court further noticing the statement of witness DW1 Indrasen Tripathi further recorded a finding that the plaintiff/appellant could not bring out anything from DW1 which could support the case of the plaintiff/appellant. The trial court held that the Hanuman Temple exists on 10 biswansi of gata no.168.
The appeal preferred by the plaintiff/appellant was also dismissed by the appellate court by affirming the finding of the trial court on issue no.1.
Challenging the aforesaid two orders, learned counsel for the appellant has contended that the finding of the trial court in respect of plot is perverse and against the record inasmuch as the trial court has miscalculated the area of gata no.168 shown in Khasra Paper No.56 Ga of plaintiff/appellant. He further contends that finding of the trial court that the Hanuman Temple exists over 10 biswansi of gata no.168 is perverse and based upon misreading of statement of DW1. Lastly, he contends that appellate court has erred in law in affirming the finding of the trial court.
I have heard learned counsel for the appellant and perused the record.
From the bare perusal of the finding returned by the trial court, it is evident that the trial court has relied upon Khasra Paper No.56 Ga of plot no.168 in returning the finding that the area of plot is 4 bigha 12 Biswa and the Hanuman Temple exists over 10 biswansi land of gata no.168. The trial court further held that the statement of witnesses PW1 Bharat Singh and PW2 Mahendra Kumar Dixit of plaintiff/appellant could not prove the plaint case.
The trial court further held that the plaintiff/appellant could not extract anything on record from the witness of defendant/respondent DW2 which could support the case of the plaintiff/appellant.
It would be worth to notice that the award annexed as Annexure 4 to the affidavit filed in support of the stay application shows that the area of gata no.168 is 4 bigha 12 biswa. Thus, it is established from the Khasra Paper No.56 Ga and the award that the area of plot no.168 is 4 bigha 12 biswa.
The appellate court while upholding the finding of trial court has noticed that in the suit for mandatory injunction, the burden is upon the plaintiff/appellant to proof that he is the owner and in possession of the property in dispute. The appellate court further noticed that the plaintiff/appellant could not take advantage of lacuna in the case of defendant/respondent in order to obtain a decree in his favour. The appellate court after noticing the aforesaid fact affirmed the finding of the trial court.
Learned counsel for the appellant submits that the trial court has wrongly miscalculated the area of Khasra Paper No.56 Ga. The appellate court has returned a finding after appreciating the revenue record and commission report filed as documentary evidence by the appellant that the plaintiff/appellant could not establish his case that 10 biswa of land of gata no.168 was not acquired and was left out of gata no.168 for the Hanuman Temple.
It is worth mentioning that the appellate court while affirming the finding of trial court has recorded a finding that the plaintiff/appellant cannot take advantage of lacuna in the case of defendant/respondent to obtain a decree in his favour as the plaintiff/appellant has to stand on his own legs.
So far as the judgements of the Apex Court in cases of Soni Dineshbhai Manilal Vs. Jagjivan Mulchand Chokshi 2007 (13) SCC 293 and Satyadhyan Ghosal Vs. DEorjin Debi 1960 AIR (SC) 941 relied upon by the appellant concerned, they are not applicable in the facts of the present case.
The findings returned by the trial court as well as the appellate court on issue no.1 are findings of fact and no substantial question of law is involved in the present appeal.
Accordingly, the present appeal lacks merit and is
dismissed. There is no order as to costs.
Order Date :- 13.1.2021 S.Sharma