Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 152 of 2019 Appellant :- Kesar Lata And 4 Others Respondent :- Nagar Panchayat And Another Counsel for Appellant :- Mohammad Azam,Shamimul Hasnain
Hon'ble Saral Srivastava,J.
Heard Sri Mohammad Azam, learned counsel for the appellant.
By means of the present appeal, the appellants have challenged the order dated 13.12.2018 passed by 9th Additional District Judge, Bareilly in Civil Appeal No. 109 of 2018 (Original Suit No. 124 of 1996), whereby the appellants/applicants for injunction to permit them to continue with the fisheries rights, has been rejected.
The defendants/respondents issued an advertisement in Amar Ujala dated dated 18.7.1988 for grant of patta for fisheries rights over the pond situated in Qasba Shergarh, Tehsil Baheri, District Bareilly.
It appears that the father of the appellants, Kailash Chandra Gupta, being the highest bidder was granted fisheries rights over the aforesaid pond. Lease deed for granting fisheries right was executed on 21.3.1991 for a period from 21.3.1991 to 20.3.1996 in favour of Kailash Chandra Gupta.
Thereafter, Kailash Chandra Gupta applied for renewal of the agreement which was not renewed and, thereafter, Kailash Chandra Gupta instituted Original Suit No. 124 of 1996, wherein he prayed for the following relief:
"21. That the plaintiff, therefore, prays:-
(a) That a decree for perpetual permanent injunction may kindly be passed in favour of the plaintiff against the defendants restraining the defendant, its servants and agents from causing any interference in the plaintiff's peaceful possession over the pond (Talab known as Rani Talab) situated at Qasba Shergarh, Tehsil Baheri, District Bareilly detailed below or from forcibly evicting and dispossessing the plaintiff from the aforesaid Talab in any manner whatsoever (Valued at Rs. 24,310.00 on one year's patta money).
(b) That a decree for mandatory injunction may kindly be passed in favour of the plaintiff against the defendant directing the defendant, its servants and agents to extend and renew the patta of Talab/Pond known as Rani Talab situated in Qasba Shergarh, Tehsil Baheri, District Bareilly detailed below for another period of five years with effect from 21.03.1996 to 23.03.2001 (Valued at Rs.24,310.00).
(c) That the costs of the suit be awarded to the plaintiff against the defendant.
(d) That any other relief for which the plaintiff be found entitled be awarded to the plaintiff against the defendant.
Details of the pond (Talab) known as Rani Talab situated at Qasba Shergarh, Tehsil Baheri, District Bareilly are as under:-
Plot No. 381 area 38-15-3 acres Town Area Shergarh (Nagar Panchayat Shergarh) Tehsil Baheri, District Bareilly."
During the pendency of the suit, Kailash Chandra Gupta died, and the present appellants came to be substituted in the suit being the legal heirs of Kailash Chandra Gupta.
It transpires from the record that during the pendency of the suit, the injunction order was operating in favour of the appellants restraining the respondents from interfering in the fisheries rights over the pond in dispute. The aforesaid suit was dismissed by the Additional Civil Judge (Senior Division), Bareilly by judgment and order dated 23.7.2018. The trial court, while dismissing the suit has recorded a finding that the appellants were granted fisheries rights over the pond for a period of 5 years and, the appellants were aware of the fact that the agreement is only for 5 years and, only with the intention to continue with the possession over the pond, the present suit has been instituted.
The trial court further noticed the fact that during the pendency of the suit the original lessee Kailash Chandra Gupta in whose favour the lease was granted had expired and the appellants being the legal heirs have no right to continue inasmuch as, they could continue with the possession over the pond up till 20.3.1996. The trial court found no merit in the suit and accordingly, dismissed it.
The appellants preferred Civil Appeal No. 109 of 2018. In the said appeal, the appellants also filed an application under Order 39 Rule 1 C.P.C. seeking temporary injunction with a prayer directing the respondents not to disturb the possession of the appellants over the pond.
The injunction application was dismissed by the 9th Additional District Judge, Bareilly by order dated 13.12.2018. The court below while rejecting the application noticed the fact that the agreement of fisheries right was only for a period of 5 years which had expired in the year 1996. It further notice the fact that the renewal of the agreement for further five years has been rejected by the authorities on the ground that the work of the lessee was not satisfactory. The Appellate Court found that the possession of the pond has been taken over by the Sub-Divisional Magistrate, Tehsil Baheri, District Bareilly. After noticing the aforesaid fact the Appellate Court rejected the temporary injunction of the appellant.
Learned counsel for the appellants has contended that there was an interim order operating in favour of the appellant's father Kailash Chanda Gupta (deceased) and as such, the appellants are also entitled for interim order in order to protect their right inasmuch as, if no interim order is granted, the appeal would be infructuous. In this regard he has placed reliance upon the judgment of the Apex Court in the case of Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd. and another (S.C.) 1982 A.W.C. 121.
I have considered the submission of the counsel for the appellant and perused the record.
Admittedly, the fisheries rights was granted in favour of the father of the appellant Kailash Chandra Gupta. The period of agreement was 5 years which was valid from 21.3.1991 to 20.3.1996, thereafter, the erstwhile lessee Kailash Chandra Gupta had no right to continue with the fisheries right.
The appellants under the garb of the interim order was allowed to continue with the possession over the pond of fisheries rights till disposal of the suit, i.e., 23.7.2018.
The submission of the learned counsel for the appellants that the appellants are entitled for injunction is misconceived for the reason that the appellants are legal heirs and not the original lessee and there was no agreement between the appellants and the respondents. Further, even under the agreement they could not have run fisheries right over the aforesaid pond beyond the period of 5 years, whereas they have enjoyed the benefits of fisheries right for about 28 years. Thus, in the opinion of the Court, the order of the court below rejecting the injunction application of the appellants is based on sound principles of law inasmuch as, the appellants have failed to establish their legal rights to continue with the fisheries right after the period of agreement had expired in the year 1996.
The judgment of the Apex Court relied upon the counsel for the appellants in the case of Mool Chand Yadav and another (supra) does not come in aid to the appellants inasmuch as, in the said case, the Apex Court was dealing with the facts situation where there was dispute of land and in that situation the Apex Court held that if the appeal of the appellant is allowed, he would be entitled to continue with the possession. In the present case, the appellants are claiming their right under an agreement which had expired in the year 1996 and, thereafter, the appellants did not have any right to continue with fisheries right, yet the appellants had enjoyed the fisheries right over the pond for a period of 28 years under the injunction order of the court. Thus, in the opinion of the Court, the court below has correctly dismissed the injunction application of the appellants. There is no good ground to interfere with the order of court below.
For the reason given above, the appeal lacks merit and is, accordingly,
dismissed. There shall be no order as to costs.
Order Date :- 21.1.2019 Ishan