JUDGMENT Poonam Srivastava, J.
1. Heard Sri A.N. Srivastava, Sri P.K. Srivastava, learned Counsels appearing for the plaintiff/appellant and Sri M.K. Gupta, Sri A.K. Mehrotra, learned Counsels appearing for the defendant/respondents.
2. Supplementary affidavit has been filed today along with copy of the plaint and written statement, and also the order dated 30.7.2004 passed by the District Judge, Gautam Budh Nagar in civil revision No. 27 of 2004.
3. This is plaintiffs second appeal against the judgment and order dated 19.12.2005 passed by the District Judge, Gautam Budh Nagar in civil appeal No. 25 of 2005 arising out of the original suit No. 53 of 2000, Jaiveer v. Raghunandan and Anr. The suit was dismissed vide judgment and order dated 25.10.2005.
4. The plaintiff/appellant instituted a suit for permanent injunction in respect of an area of 200 square yards of Khasra No. 244 claiming his ownership and possession for over more than forty years. Claim of the plaintiff/appellant is that his ancestor built a Kachcha construction and was previously carrying on business of milk. Subsequently, construction was made permanent and started a scooter repairing and welding shop as well as a S.T.D. booth is operated from the disputed land. It was further pleaded that the defendant/respondents were trying to interfere in the possession and also threatening to demolish the construction. Hence the suit.
5. The defendant/respondents filed written statement denying the right, title and possession of the plaintiff. According to them, a Temple was constructed on Khasra No. 244 and rest of Abadi land appurtenant to the Temple was also claimed by the defendant/respondents. The Civil Judge (Senior Division) Gautam Budh Nagar, declined to grant an ex parte temporary injunction. A civil revision was preferred. The District Judge directed the parties to maintain status quo vide order dated 21.2.2000. The trial court framed five issues.
6. Issue No. 1 was "whether the plaintiff is owner in possession of the disputed property, if yes, then its effect?"
7. Learned Counsel for the appellant submitted that the Amin's report was called for, which was confirmed, since no objection was filed by the* defendant/respondents. The trial court came to a conclusion that the plaintiff has not been able to establish his right over the disputed property. Issue was decided against the plaintiff. Electricity bills, receipts and notices issued by the Zila Parishad and certain photographs were not read in evidence as it was not proved. Learned Counsel for the appellant laid great emphasis on the finding that the defendants have not been able to establish their title and possession, therefore, the suit was liable to be decreed. A civil appeal filed against the judgment and order of the trial court was also dismissed and the finding recorded by the Civil Judge (Senior Division) stood confirmed against which, the present second appeal has been preferred,
8. Substantial questions of law raised in appeal on behalf of the appellant are quoted below:
1. Whether, the Mandir, Abadi can at all be interpreted as Mandir Ki Abadi?
2. Whether, documents alleged to be forged has to be proved by the person, who is filing the documents or the burden lies on the person, whose claim said to be forged?
3. Whether, the public documents is required to be proved?
4. Whether, in the finding, that respondents have not proved their title and possession over the disputed property, if an injunction can be granted against him against his interference over the possession of the property held by plaintiff/appellant?
5. Whether, the court can ignore the consideration of the evidence on record, as such judgment to be called perverse and set aside?
9. Certain other substantial questions of law have been raised in the supplementary affidavit but since it has not been incorporated by getting the memo of appeal amended, I am not inclined to consider them. However, the substantial questions of law raised by means of the supplementary affidavit are only repeatition, which have already been enumerated above.
10. Sri M.K. Gupta, Advocate, has emphatically disputed the arguments raised on behalf of the appellant. Submission on behalf of the defendant/respondents is that since the plaintiff has claimed permanent prohibitory injunction in the suit on the basis of his ownership of the disputed property from the time of his ancestor, it was bounden duty of the plaintiff to have established his right and title. Second objection is that since injunction is discretionary relief, it can only be given, if the person claiming such a relief comes with clean hands. In the instant case, admittedly documents relied upon and adduced in evidence by the plaintiff were forged documents and, therefore, the court rightly declined to grant any relief whatsoever.
11. After hearing counsels for the respective parties at length and on perusal of the impugned judgment and orders, it appears that the plaintiff adduced documentary evidence such as Khasra and Khatauni in respect of plot No. 244. During continuation of the proceedings, it transpired that Khasra was a forged document, which was kept in a sealed cover and the plaintiff admitted himself that he had lodged the First Information Report against the Lekhpal. Copy of which was brought on record. Thus, it was admitted by the plaintiff that Khasra was a forged document. In the Khatauni relating to 1401 Fasli, the disputed property was recorded as a Temple along with certain trees. Besides, the plaintiff admitted in his oral statement that his father died six months prior to institution of die suit, his name was entered in the forged Khasra subsequently, since name of the forefather was never entered in any of the documents, the courts below have recorded a finding that the property in dispute is neither ancestral property nor the ancestors were ever recorded. The word 'Abadi' used in respect of plot No. 244 in fact connotes the constructed Temple over the plot, therefore, the trial court recorded a conclusive finding that since no right and title could be proved by the plaintiff, he could not be granted relief of permanent prohibitory injunction. On perusal of the two judgments and other documents, it is clear that the issue was correctly decided against the plaintiff. It is also to be noticed that perusal of the plaint does not show that the relief claimed by the plaintiff was that even if he was an unauthorized occupant, he could not be dispossessed otherwise than in accordance with law. Since, the plaintiff claimed right and title over the disputed property, the court could not grant him relief, which was never claimed by the plaintiff. So far argument of the counsel for the appellant in respect of finding that the defendant/respondents have also not been able to establish their title is concerned, the plaintiff cannot take benefit of shortcomings of the defendants especially when it was burden of the plaintiff to prove his case. The plaintiff having failed to discharge his burden, the suit was rightly dismissed. No benefit can accrue to the plaintiff on the basis of finding recorded by the courts below that the defendants have also not been able to establish their title and possession.
12. Sri. A.N. Srivastava, Advocate, has cited a decision of the Apex Court M. Kallappa Setty v. M.V. Lakshminarayana Rao , wherein the Apex Court held that on the strength of possession, the plaintiff can resist interference from the defendant, who has no better title than the plaintiff and get injunction restraining the defendant from disturbing his possession. Extract of paragraph No. 5 of the said decision is quoted below:
Once it. is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily.
13. I am in full agreement of the principle enunciated by the Apex Court but in the instant case, it is to be noticed mat both the courts below have declined to accept that the plaintiff was in possession and especially on the face of specific finding that the plaintiff has not been able to establish his title as well as possession. The decision of the Apex Court is of no help to the appellant. Besides, it is also to be noticed that specific finding has been recorded by the courts below that relief of injunction is equitable relief, since the plaintiff did not approach the court with clean hands, he cannot claim any such relief whatsoever.
14. In the facts and circumstances of the case, finding regarding possession of the plaintiff is finding of fact and cannot be interfered in exercise of jurisdiction under Section 100 C.P.C. The substantial question of law raised by the appellant whether the Temple at all can be interpreted to be Abadi cannot be disturbed. Cogent reasoning has been given by the courts below and the construction standing on the disputed plot recorded as Abadi in category 6 (2) is a huge area, on which the Temple is situated. The courts below have recorded finding that the open land around the Temple also belongs to the deity and is appurtenant land of the Temple. Therefore, I come to a conclusion that no substantial question of law arises worth interference by this Court. Second substantial question of law is also not worth consideration on the face of specific finding recorded by the courts below that the plaintiff himself admitted in the witness box that he had lodged the First Information Report against the Lekhpal, who forged the Khasra. Therefore, on own admission of the plaintiff, there is no question of proving the said Khasra. It is admittedly a forged document. Other three questions of law cannot be said to be substantial questions of law either.
15. In view of finding recorded above, there is no merit in the instant second appeal, no substantial question of law arises worth consideration. The second appeal is, accordingly, dismissed.
16. There shall be no order as to costs.