Dismissed

Ganga Sharan and 2 Othrs. v. Gram Panchayat Mauza Haraiya and Another

Allahabad HC12 Dec 2019SAPL/1202/2017

Case brief

AI extract

What is this about?

In second appeal regarding permanent injunction on disputed land, the bench dismissed the appeal as the appellate court correctly affirmed the trial court's conclusion that the plaintiffs failed to establish the land area via a valid spot map, noting the Commissioner's report was unavailable.

What did the court decide?

The second appeal was dismissed, affirming the dismissal of the suit and decree.

Ganga Sharan and 2 Othrs. Vs Gram Panchayat Mauza… — Property and Title | Allahabad HC (2019)

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Court No. - 53 Case :- SECOND APPEAL No. - 1202 of 2017 Appellant :- Ganga Sharan And 2 Othrs. Respondent :- Gram Panchayat Mauza Haraiya And Another Counsel for Appellant :- Prabhat Kumar,Dharampal Singh,Siddharth Niranjan

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Hon'ble Vivek Agarwal,J.

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Heard Sri Dharmpal Singh, learned senior Advocate assisted by Sri Jitendra Kumar, counsel for the appellant.

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This second appeal under section 100 of CPC has been filed being aggrieved by judgment and decree dated 26.7.2017 passed by Additional District Judge, Court No. 16, Deoria dismissing Civil Appeal No. 32 of 2016 arising out of judgment and decree dated 6.9.2016 passed by Civil Judge (Senior Division), Court No. 18, Deoria dismissing the Original Suit No 419 of 2006.

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Counsel for the appellant submits that a suit was filed before the Trial Court at the behest of the plaintiffs claiming that they are in possession of the suit land contained in plot no. 529 measuring area 0.56 decimal which has been renumbered as circle no. 400 area 0.02 acre. It was claimed that plaintiffs Ganga Sharan, Gomti Sharan and Amitesh Kumar are sons of Kripa Shankar. It is an admitted position that the suit land has been recorded in the name of one Shyam Sundar Lal in year 1313 fasli. In the suit relief was sought to the effect that decree of permanent injunction being issued in favour of the plaintiffs and against the defendants i.e. Gram Panchayat and State of UP to not to interfere in peaceful possession of 0.56 decimal of land contained in old circle no. 529 (new circle no. 400).

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Counsel for the appellant submits that the trial court while adjudicating the suit, dismissed the suit and recorded findings against the appellant to the effect that since the name of father of the appellants/plaintiffs was not recorded in revenue records after their grandfather, therefore, ownership and title of the plaintiffs is doubtful. Similarly, it is alleged that learned first appellate court also reversed the finding of the trial court that if name of the plaintiffs is not recorded in the revenue records as a title holder, but as possessor then no adverse inference could have been drawn against the plaintiffs. It is submitted that on two grounds, the findings of the trial court were reversed then there was no justification in not allowing the first appeal and decreeing the suit for permanent injunction.

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A perusal of the impugned order passed by the learned

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Additional District Judge reveals that first appeal has been dismissed on the ground that as per evidence and documents available on record though plaintiffs case is that the area of circle no. 529 is 56 decimal and a relief has been sought in relation to 0.56 decimal of land, but this factum is not established from the spot map Najri map that the area of circle no. 529 (new circle no. 400) is 0.56 decimals. In fact, it has been shown to be 0.02 decimal. As no relief has been sought by the plaintiffs in relation to 0.02 decimal, therefore, the first appeal has been dismissed.

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Counsel for the appellant has drawn the attention of this Court to the Commissioner's report as available on record and as has been filed as Annexure-2 and was produced before the trial court as document no. 25-C/1 that when the Joint Commissioner had prepared a spot map, which matches with the suit map as is enclosed with the plaintiffs, therefore, there was no need to dispute such suit map matching with the Commissioner's report and thus the suit should have been decreed.

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Counsel for the appellant when specifically inquired to answer as to whereabouts of the report of the Commissioner, because according to the Commissioner, said spot map was prepared after taking into consideration of all the necessary points and boundaries. Learned counsel fairly submits that such report is not available on record. Secondly it has been said that report is deemed to be correct, though there can be serious dispute to this fact. In absence of proper report duly signed by Pancha Sakshi before whom the report was prepared and spot map was prepared, it cannot be said that such map as has been produced by the Commissioner is of any relevance. Another aspect which goes to the root of the litigation is that when area of circle no. 529 (old), new circle no. 400 and land shown in circle no. 400 is 0.02 decimal then could the plaintiff without getting such revenue record corrected, file a suit for permanent injunction seeking decree of permanent injunction in relation to 0.56 hectare of land.

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In view of such discussion fact though it is true that first appellate court has reversed certain findings of fact recorded by the trial court, but the conclusion recorded by the trial court has been affirmed by the first appellate court and that conclusion in absence of any material on record either in the form of a document or oral evidence does not call for any interference in the appellate jurisdiction of this Court under Section 100 of CPC. Therefore, the appeal fails and it is dismissed.

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Order Date :- 12.12.2019/S.K.S.

Ganga Sharan and 2 Othrs. v. Gram Panchayat Mauza Haraiya and Another

Case brief

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Ganga Sharan and 2 Othrs. v. Gram Panchayat Mauza Haraiya and Another

Case brief

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