Case :- SECOND APPEAL No. - 983 of 2005 Reserved on 26.8.2021 Delivered on 21.9.2021 Appellant :- Vishwanath Since Deceased And Others Respondent :- Sarju And Others Counsel for Appellant :- Alok Kumar Yadav Counsel for Respondent :- Sanjai Agrawal,Ajai Yadav,Ajay Yadav,Anshu Chaudhary,B.K. Dwivedi,B.K.Dwivedi,I N Singh,I.N. Singh,I.R. Singh,Ravi Sinha,S.S. Pal,S.S.Pal,Sanjeev Agarwal,Sanjeev Agrawal,Vinod Dwivedi
Hon'ble Siddharth,J.
1. Heard Sri Alok Kumar Yadav, learned counsel for the appellants and Sri Anshu Chaudhary, learned counsel for the respondents. Lower court record has also been persued.
2. This second appeal has been preferred against the judgement and decree dated 28.9.2005 passed by the Additional District Judge, Court No. 17, Allahabad in Civil Appeal No. 368 of 1986, confirming the judgement and decree dated 23.7.1986 passed by the First Additional Munsif, Allahabad in Original Suit No. 655 of 1974.
3. The plaintiffs instituted the Original Suit No. 655 of 1974 against the defendant no.1 praying for a decree of demolition and possession over the suit property.
4. The plaintiffs’ case was that land in dispute is his Sahan for the last 60 years and the defendant no.1 has no concern with the same. In June 1974, he forcibly constructed a wall and made other illegal constructions over the same during the pendency of the suit. The property in dispute is situated over the plot no. 1170 (New no. 1079) in Mauja Mugrao, Pargana Kewal, Tahsil Handia, district Allahabad. The defendant nos. 2 and 3 are real brothers of the plaintiffs and since they were not present at the time of institution of suit, they were impleaded as defendants in the suit.
5. The defendant no.1 filed his written statement rebutting the plaint averments and claimed his possession over the suit property for the last more than 100 years. He also claimed that he has purchased the same on 20.1.1981, vide registered sale deed from Shri Prakash Bahadur. He denied any possession of the plaintiff over the land in dispute. It was stated that defendant no.1 has constructed house on the eastern and northern side of house of Shiv Bahadur. Trees standing on the plot have been purchased by him from the earlier owners.He also claimed open adverse possession over the property in dispute.
6. On the basis of the pleadings of the parties, the trial court framed the following issues:-
1. Whether the plaintiff has right to institute the suit?
2. Whether the plaintiff is owner of the disputed land?
3. Whether the suit is bad for non-joinder of necessary parties on account of non- impleadment of Shri Prakash Bahadur, etc.?
4. Whether there is defect in the suit regarding non disclosure of correct and complete details of the suit property?
5. Whether the suit is barred by section 49 of Consolidation of Holdings Act?
6. Whether the illegal and unnecessary construction made by the defendant on land ‘Aa,Ba,Sa,Da’ is liable to be demolished?
7. To what relief is the plaintiff entitled to?
8. Whether the suit is under valued and court fees paid is insufficient?
9. Whether the defendants have made illegal constructions on the disputed land after institution of suit ,which is liable to be demolished?
7. Issue nos. 1,2,6 and 9 were decided together by the trial court. It found that the plaintiff, and defendant nos.
2 and 3 are owners of the property in dispute and defendant no.1 has made illegal constructions over the same,which is liable to be removed and plaintiff has full right to institute the suit.
8. Regarding issue no.3, the trial court found that suit is not bad for non- joinder of necessary the parties.
9. Issue no.4 was decided holding that full and complete details of the suit property have been furnished by the plaintiff.
10 Issue no. 5 was decided holding that the land in dispute appears to be 'Abadi’ and, therefore, the suit is not barred by section 49 of U.P. Consolidation of Holdings Act.
11. Issue no. 8 regarding under valuation of the suit and court fees paid was decided in favour of the plaintiff.
12. Issue no. 7 was decided holding that plaintiff has successfully proved his case and, therefore, his suit deserves to be decreed.
13. Accordingly the suit was decreed by the judgement and decree dated 23.7.1986.
14. Aggrieved by the judgement and decree dated 23.7.1986 of the trial court, the defendants/appellants preferred a Civil Appeal No. 268 of 1986, which was allowed by the judgement and decree dated 27.5.1989 by the first appellate court. Against the judgement and decree dated 27.5.1989, the plaintiffs preferred a second appeal no.1442 of 1989, which was allowed by this court by judgement and order dated 2.4.2004 and the matter was remanded back to decide the appeal afresh. After remand, the civil appeal was dismissed by judgement and decree dated 28.9.2005 passed by first appellate court and hence this second appeal has been preferred by the defendants/appellants against the judgement and decree of the trial court as well as first appellate court.
15. This appeal has been admitted on the following substantial question of law:-
“1) Whether the lower Appellate Court while framing the point of determination for deciding the Appeal as required under Order 41 Rule 31 of C.P.C. has erred in law in framing the point of determination to the effect that what will be the effect of the revenue entries with regard to the nature of the land in various consolidation forms and applicability of section 49 of the U.P. Consolidation of Holding Act.”
16. Learned counsel for the defendants/appellants has submitted that regarding a land which was recorded as an agricultural land at the time of enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950(hereinafter to be referred as ‘Act No.1 of 1951) unless a declaration is sought under section 143 of the Act, it will continue to be land as defined under section 3(14) of the said Act even though some constructions exist thereon.He has relied upon the following judgements of this Court:-
1. Deena Nath Verma Vs. Gokaran, reported in 2003 (94) RD, 323.
2. Basti Ram Vs. Nagar Nigam, Ghaziabad, reported in 1999(90) R.D. 636.
17. The bar of section 49 of the U.P. Consolidation of Holding Act, 1953 is absolute and once the consolidation court had declared the defendants/respondents as Bhumidhar of plot in dispute, no enquiry about title can be made by Civil Court or Revenue Court especially when the plaintiffs admitted before the trial court that they have not filed any objection before the consolidation authorities. He has relied upon the judgement of Narendra Prasad Singh, 2005 Vol.9 SCC, 157,.The suit was barred by Section 49 of the U.P. Consolidation of Holdings Act,1953.The suit was liable to be dismissed by the courts below in as much as the plaintiff could not prove his legal possession over the property in dispute or any title thereon. Plaintiff made only a bald statement in paragraphs 2 and 5 of his plaint in this regard. It is well settled law that plaintiff in a suit for demolition and recovery of possession cannot succeed only on weakness of of other side before the court below but he had to succeed on the strength of his own evidence. In entire length and width of judgements and orders of the court below there is no consideration about the title and possession of plaintiff, whether legal or illegal, over the property in dispute by either court. He has relied upon the following judgement in support of his contention:-
1) Moran Mar Basselios Vs. Most Rev. Mar Poulose Athanasiius, reported in AIR, 1954, SC,526.
2) Heera Devi Vs. Official Assignee Bombay, reported in AIR, 1958, SC,448.
3) Brahmanand Puri Vs. Nek Puri, reported in AIR,1965,SC,1506.
4. Yamuna Nagar Improvement Trust Vs. Khairati Lal, reported in (2005) 10 SCC, 30.
5. Union of India and others Vs. Vasavi Cooperative Society Ltd. And others, reported in (2014) 2 SCC,69.
6. Jagdish Prasad Patel and another Vs. Shivnath and others (2019) 6 SCC,82.
18. He has finally submitted that the plaintiff had failed to prove his title and his legal possession over the property in dispute,therefore, he was not entitled to get any relief by the court below.
19. Learned counsel plaintiffs/respondents has submitted that the defendants-appellants have stated in the written statement of being in possession of disputed property for he last 100 years and has also having purchased the same vide sale deed dated 20.1.1981 from Prakash Bahadur. The alleged sale deed dated 20.01.1981 was executed during the pendency of suit by Prakash Bahadur, who is alleged to be recorded as Sirdar. The content of alleged sale deed is contrary to averment of written statement with regard to possession and of not mentioning any construction existing in alleged sale deed dated 20.1.1981. The issue no. 5 was framed before the trial court with regard to suit being barred by Section 49 of U.P. Consolidation of Holdings Act, which has been decided by the trial court in favour of the plaintiff-respondents. It is further submitted that in the appeal filed by the defendant-appellant,which was decreed vide judgement dated 27.5.1989 and in the second appeal filed by the plaintiff-respondents, which has been allowed by this court vide judgement dated 2.4.2004,no argument was made on behalf of the defendants-appellants regarding the suit being barred by Section 49 of U.P. Consolidation of Holdings Act and as such in view of principle of resjudicata the defendant-appellants cannot raise such plea as in the first round of litigation the said issue has become final. It is stated that the principle of res-judicata applies at every stage of proceedings. Principle of res-judicata is attracted in subsequent stage of same proceedings also. Learned counsel for the plaintiffs/respondents has further submitted that a bare perusal of the relief clause of the plaint shows that the relief sought is purely of injunction and demolition of illegal construction raised by defendant/ appellant during the pendency of the suit and of possession. It is stated that such relief are only cognizable by civil court and can be granted by civil court and the consolidation authorities have no jurisdiction to consider and grant the relief of injunction and demolition under U.P. Consolidation of Holdings Act and as such the jurisdiction of Civil Court to try the aforesaid suit was not barred by Section 49 of U.P. Consolidation of Holdings Act. Consolidation Authorities have jurisdiction to adjudicate upon dispute or rights and title relating to land included in consolidation proceedings. Since the Consolidation Authorities cannot grant such relief hence the suit instituted by the plaintiff/respondent was not barred. The question of applicability of Section 49 of U.P. Consolidation of Holdings Act is a mix question of fact and law and hence the present defendants/appellants should have filed evidence before the courts below with respect to it.It is submitted that the statement of Sarju (P.W.1) on which the reliance has been placed will be of no help to the present defendants/appellants who have to stand on their own legs and have to prove that the suit was barred by Section 49 of U.P. Consolidation of Holdings Act.
20. It is further stated that under Section 5(2) (a) of U.P. Consolidation of Holdings Act the proceedings pending before any court or authority will abate only on an order being passed in that regard by the court or authority and there will be no automatic abatement of the proceedings. It is stated that the burden was upon the present defendants/appellants to prove the aforesaid fact which they have miserably failed and have not pressed before the first appellate court or second appellate court in the first round of litigation and as such it is also barred by principle of estoppel.The present second appeal which has been admitted on the aforesaid questions of law does not involves such question to be adjudicated as the suit being barred by principle of resjudicata.The order of appellate court dated 28.9.2005 is in conformity with the directions of remand order of this Court dated 2.4.2004. The courts below have recorded concurrent findings of fact , which invites no interference by this court.
21. After hearing the learned counsel for the parties , this court finds that when the plaintiffs/respondents challenged the judgement and decree 27.5.1989 passed in Civil Appeal No. 368 of 1986 before this Court vide Second Appeal No. 1442 of 1989,the defendants/appellants never raised plea of bar of the suit by Section 49 U.P. Consolidation of Holdings Act.The judgement dated 2.4.2004 passed by this Court shows that it was decided on three substantial questions of law:-
“1.Whether the lower appellate court was justified in allowing the appeal without discussing any evidence on record regarding merits and whether such a judgement can be sustained?
2. Whether the lower appellate court was justified in allowing the appeal and deciding the whole controversy on the basis of the inspection report?
3. Whether the judgement of the lower appellate court is in accordance with order 41 Rule 31 C.P.C.?”
22. This court after hearing the learned counsel for the parties decided the aforesaid substantial questions of law holding that the dispute between the parties is regarding land which is claimed by both the parties as their Sahan.
23. This court found that the first appellate court has wrongly held that since no door exists towards the west side of the house of the plaintiff,he cannot be said to be using this land as Sahan. This court further found that appellate court has passed the judgment relying upon the inspection report dated 28.4.1989 without giving any opportunity to the parties to file their objections thereon. This Court also found that the appellate court did not evaluated the oral evidence of the parties regarding the appurtenant land .It accordingly allowed the second appeal and remanded the same to decide afresh in the light of observations made above .Therefore, it is clear that appellate court was bound to decide the appeal as per observations made by this court in its judgement and order dated 2.4.2004 passed in second appeal no.1442 of 1989.
24. The arguments of learned counsel for the plaintiffs/respondents is that the issue of bar of section 49 of U.P. Consolidation of Holdings Act was not raised before this court in the earlier second appeal and therefore,it can not be raised now appears to have substance.As per Section 11 Explanation V C.P.C. Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. In the earlier second appeal before this court the defendants/appellants never raised any plea of bar of Section 49 of U.P. Consolidation of Holdings Act nor sought dismissal of the appeal of the plaintiff on that ground. The Apex Court in the case of Y.B. Patil Vs. Y.L. Patil, Laws(SC) 1976-8-44 has held that Principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of the proceeding.
25. The lower appellate court, after the remand of the appeal by this Court was required to decide the appeal as per observations made by this Court in second appeal aforesaid and accordingly it framed two points of determination. It was not required to decide the bar of Section 49 of U.P. Consolidation of Holdings Act as per judgement and order dated 2.4.2004 of this court.The judgement of this court in earlier second appeal was never challenged by the defendants/appellants before the Apex Court,therefore, observations made therein have attained finality.
26. The revenue entries recorded by the consolidation court and application of section 49 of U.P. Consolidation of Holdings Act was never an issue before this court in the earlier second appeal which was remanded for fresh decision in accordance with observations made therein only.The appellate court has accordingly decided the appeal and not travelled beyond the direction of this court in the earlier second appeal.Hence the appellate court did not erred in framing the points of determination under Order 41 Rule 31 C.P.C., regarding effect of revenue entries regarding the nature of land and bar of section 49 of U.P. Consolidation of Holdings Act and defendants/appellants are estopped from raising the aforesaid plea in view of the applicability of principle of res judicata at the subsequent stage of proceeding.
27. Therefore, substantial question of law framed in this appeal as to whether the first appellate court while framing the point of determination for deciding the appeal as required under order 41 Rule 31 of C.P.C, has erred in law in framing the point of determination to the effect that what will be the effect of the revenue entries with regard to the nature of the land in various consolidation forms and applicability of Section 49 of U.P. Consolidation of Holdings Act is answered as stated above.
28. In view of the answer to the substantial question of law framed in this appeal, this appeal is dismissed with costs.
Order Date :- 21.9.2021
Atul kr. sri.