Court No. - 37
Case :- SECOND APPEAL No. - 411 of 2012
Appellant :- Nagar Palika Parishad
Respondent :- Rakesh Kumar And Others Counsel for Appellant :- Sushil Chandra Srivastava
Counsel for Respondent :- Dhiraj Srivastava,Kshitij Shailendra,V.N. Shukla,Y. N. Shukla,Yogendra Nath Shukla
Hon'ble Siddhartha Varma,J.
The plaintiff/respondent no. 1 had filed a suit for permanent injunction being Suit No. 26 of 2006 with an allegation that the property over which he was praying for injunction was, in fact, purchased by his father Sardari Lal and his aunt Kamla Rani by means of a sale deed, the vendor of which was one Saraswati Prasad who was the owner of plots no. 15 and 25. These plots no. 15 and 25 measured 0.24 hectares and 0.23 hectares respectively and, therefore, he was in the ownership of land measuring 179.16 square meters.
Further case of the plaint was that, in fact, the plaintiff's predecessor-in-interest had purchased the property not by measurement but by boundaries.
Further case of the plaintiff was that he had got himself declared the owner of the property in another suit being Suit No. 56 of 1996 and this aspect of the matter was not contradicted by his aunt Kamla Rani who was arrayed as a defendant in the Suit.
The defendants appellant, however, contested the suit and stated that the petitioner was only an owner of 80 square meters as only plot no. 25 was sold to the predecessors-in-interest of the plaintiff and plot no. 25 measured 80 square meters only. The Suit as was filed by the plaintiff was dismissed but the first appeal was allowed and the suit was ultimately decreed. The defendants, therefore, filed the instant second appeal which was admitted on the following substantial questions of law:
(a) Whether it was incumbent upon the courts below to frame an issue with regard to the location of the property in question and to determine, after obtaining survey report, as to whether it was situated over plot No. 25, as claimed by the defendant, which measured only 80 square meter, as per the revenue records?
(b) Whether the lower appellate court was justified in granting a blanket injunction as against the defendant-appellant for not interfering with any constructions that may be carried out by the plaintiff-respondent over an area admeasuring 171.04 square meter?
Learned counsel for the appellant submitted that a survey report was essential when the plaintiff had come up with a case that the boundaries alone were there and no measurements were given in the sale deed upon which the case was based. He, therefore, submitted that when there was a serious dispute with regard to the identity of land in dispute then a survey commission ought to have been issued to locate the land.
Learned counsel for the appellant relied upon 2000 (7) JT 379 (Shreepat vs. Rajendra Prasad and Ors.) and 2011 (6) ADJ 1363 (U.P. State Sugar Corporation Ltd. vs. Ram Niranjan and Ors.).
Learned counsel for the contesting respondent no. 1, however, in reply, submitted that ever since the sale deed was executed on 9.8.1970, the plaintiff had continued in uninterrupted possession. The findings of the First Appellate Court were based on the khatuani (paper no. 20 (c)) and upon the various amin reports which were dated 14.3.2006, 13.4.2006 and 4.10.2007 and, therefore, he submitted that when the First Appellate Court came to the conclusion that the land was identifiable and no further inspection etc was required then the Appellate Court correctly concluded that the Suit had to be decreed.
Having heard the learned counsel for the defendant-appellant and the respondent-plaintiff, this Court is of the view that the Appellate Court had rightly relied upon the commission reports and the various evidence which were there on the record and were led by the parties and had correctly concluded that the property in question was identifiable and also had correctly concluded that the plaintiffs were entitled for an injunction. Therefore, this Court is of the view that the substantial questions of law as were framed do not, in fact, need to be answered in the instant second appeal.
The Second Appeal is, accordingly, dismissed.
Order Date :- 30.5.2019 praveen.
(Siddhartha Varma,J.)