Court No. - 5
Case :- SECOND APPEAL No. - 1 of 2021 Appellant :- Mukhtarul Ameen Ahmad @ Munna Respondent :- Mathura Vrindavan Vikas Pradhikaran Counsel for Appellant :- Anita Srivastava,Anurag Sharma
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant.
2. This second appeal has been filed against the judgment and decree dated 22.9.2020 passed by Additional District Judge, Fast Track Court No. 2, Mathura in Civil Appeal No. 55 of 2017 and order dated 18.3.2017 passed by Civil Judge (Senior Division), Fast Track Court, Mathura in Original Suit No. 770 of 2010 dismissing the suit of the appellant.
3. The appellant had instituted Original Suit No. 770 of 2010 on the ground that he has purchased the suit property 300 sq. yard of Khasra no. 2 situated at Village Ronochi Bangar, Mathura by registered sale deed dated 8.4.1993.
4. As per case in the plaint, the suit property was part of Khasara No. 2 having an area of 0.583 hectare. According to the appellant, out of 0.583 hectare, 0.559 hectare was acquired by the defendant- respondent and the remaining 0.024 hectare was purchased by the appellant. On the basis of aforesaid pleading, he has prayed for injunction restraining the respondent from interfering into peaceful possession of the property.
5. The suit was contested by the respondent by filing written statement contending inter-alia that the Khasara/Khata No. 2 consisted of 0.583 hectare out of which respondent had acquired 0.559 hectare and remaining 0.024 hectare was not acquired. The respondents also denied the execution of the sale deed on 8.4.1993.
6. The Trial Court has framed 7 issues. The Issue No. 1 was framed by the Trial Court as to whether the plaintiff is owner and in possession of the suit property. On the said issue, the Trial Court after appreciating evidence and facts on record relied upon the judgment of this Court in Writ Petition No. 17996 of 2001 (Mukhtarul Ameen Ahmad vs. State of U.P.) which was filed by the appellant challenging the acquisition proceedings. The said writ petition was dismissed by the judgment and order dated 4.5.2005. The relevant extract of the judgment dated 4.5.2005 relied upon by the Trial Court is reproduced hereinbelow:-
"…..There is no assertion in the writ petition that the property in dispute is not acquired. The property of the petitioner relates to plots no. 2 and 28 of village Ranji Deemar, Pargana and District Mathura. Copy of the notification under Section 4 of the Act is also on record of the writ petition. It indicates that these plots are included in the notification. As such this plaint has also no merit... In case the petitioner has not been given any compensation he may file an application before the respondent no. 4 for getting the same. "
7. The Trial Court further considered the statement of PW-1 (appellant) who has admitted in his statement that at the time of execution of sale deed, the land was declared abadi and he has submitted his objection before the comptent authority against the acquisition of his land. The relevant extract of the statement of PW-1 is reproduced herein below:-
“oknh us ih-MCyw&1 ds :i eas viuh izfrijh{kk eas Ck;ku fd;k gS fd&cSukek ds le;
IykV okyh Hkwfe vkcknh ?kksf"kr gks pqdh FkhA eS aus tc viuh iz'uxr Hk wfe d s vtZu fd, tkus ds fo:) vkifRr fo'k s" k Hk wfe v/;kfIr vf/kdkjh d s le{k izLrqr dh FkhA vkifRr ls i wo Z eS aus fo'k s" k Hk wfe v/;kfIr vf/kdkjh ds ;gka vtZu ls lac af/kr lHkh dkxtkr n s[k fy, Fk sA ”
8. The Trial Court after considering in detail the evidence led by the parties found that the appellant has failed to prove his ownership and also his possession over the property in dispute.
9. Against the said judgment, the appellant has preferred Civil Appeal No. 55 of 2017 which was dismissed by the appellate court affirming the finding of the Trial Court that the appellant has failed to prove his title over the property in dispute. The appellate court while recording the aforesaid finding has held that if the case of the appellant is taken to be correct that his land was not acquired then there was no occasion for the appellant to seek compensation before the High Court and no explanation has been tendered by the appellant as to why he preferred the writ petition.
10. Challenging the aforesaid finding, counsel for the appellant has submitted that both the courts below have erred in dismissing the suit of the plaintiff-appellant on the ground that appellant had filed writ petition before the High Court whereas the writ petition was filed in respect of different cause of action.
11. A perusal of the record indicates that the writ petition has been filed by the appellant and this Court after observing that the appellant has not alleged in the writ petition that his land was not acquired relegated the appellant to the competent authority to seek compensation. The appellant also in his statement before the court below has admitted this fact that he has filed written objection against the notification under Section 4 of Land Acquisition Act.
12. Therefore, from the aforesaid facts, it is evident that the appellant has failed to prove his title over the suit property and further failed to prove that his land has not been acquired and the appellant is in lawful possession over the suit property. The findings returned by the courts below are finding of fact and there is no substantial question of law involved in this appeal.
13. Consequently, this second appeal lacks merit and is accordingly dismissed.
Order Date :- 8.1.2021 Jaswant