Dismissed

Mahendra Singh v. Chiddi Singh and 2 Others

Allahabad HC8 Jul 2019SAPL/844/2019

Case brief

AI extract

What is this about?

The single-judge bench dismissed a second appeal wherein the appellant challenged a decree relating to an injunction suit on Gaon Sabha land. The court held that the Gaon Sabha was not a necessary party and found no substantial question of law regarding the lower appellate court's failure to frame specific points of determination.

What did the court decide?

The second appeal was dismissed as there was no substantial question of law meriting admission.

Mahendra Singh Vs Chiddi Singh and 2 Others — Allahabad HC (2019) — LawSathi Research

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Court No.53

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Case :- SECOND APPEAL No. - 844 of 2019

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Appellant :- Mahendra Singh Respondent :- Chiddi Singh And 2 Others Counsel for Appellant :- Mahendra Prasad Mishra,Ravi Kamal Pandey

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Hon'ble Jayant Banerji, J.

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Heard Shri Mahendra Prasad Mishra, learned counsel appearing for the appellant.

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This Second Appeal has been preferred by the defendant-appellant against the judgment and decree dated 5 April 2019 and 11 April 2019 respectively passed by the Vth Additional District & Sessions Judge, Court No.5, Aligarh in Civil Appeal No.153 of 2014 (Phool Chand and Anr. vs. Chiddi Singh & Ors.) as well as against the judgment and decree dated 8 August 2014 and 19 August 2014 respectively passed by the Civil Judge (Junior Division), Judicial Magistrate, Iglas, Aligarh in Original Suit No.21 of 2008 (Chiddi Singh vs. Chandrapal).

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The contention of the learned counsel for the appellant is twofold. Firstly, that the Gaon Sabha is a necessary party in view of Section 79 and Order 1 Rule 8 of the Code of Civil Procedure, 1908¹ and further in view of Rule 110-B of the U.P. Zamindari Abolition and Land Reforms Rules, 1952² as also in view of Section 34/35 of the U.P. Panchayat Raj Act, 1947³ . It is his contention that for want of impleadment of a

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1 CPC 2 UPZA & LR Rules

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3 Panchayat Raj Act

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necessary party, the suit must fail. Secondly, the contention is that the lower appellate court was required to frame points for determination with regard to all the grounds raised by him in the appeal and that having not been done, particularly when a ground regarding the suit being barred under Order 1, Rule 8 CPC, was raised, the substantial question of law arises entailing admission of the appeal.

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The suit for injunction was filed by the plaintiff after having failed to obtain any redressal of his grievances from the specific complaint made by him to the revenue authorities. There is no dispute about the fact that the Plot Nos.1407 and 1410, being the plots in dispute, are Gaon Sabha land. The allegation of the plaint, as affirmed by the testimonies of witnesses, was of the encroachment of the road and manure pits on the plot in dispute by the defendants. Thus, as far as the arguments of the learned counsel for the appellant regarding non-joinder of the necessary party, i.e. Gaon Sabha and the State Government, are concerned, the provisions of Section 79 and Order 27 Rule 1, CPC as well as the provisions of Rule 110-B of the UP ZA & LR Rules, are of no assistance to the appellant. The U.P. Zamindari Abolition and Land Reforms Act, 1950⁴ provides instances where a Gaon Sabha would be a necessary party. The counsel for the appellant has not been able to point out under which provision of the Act of 1950 would the Gaon Sabha or the State Government be necessary parties in the facts and circumstances of the present case. The suit was one of permanent and mandatory injunction

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4 Act of 1950

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against a private party and no issue with regard to jurisdiction was raised. In the facts and circumstances of the case, the Gaon Sabha and the State Government would not be necessary parties and the suit would not be defeated on this ground. Thus, no substantial question of law arises on this issue.

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Even though it has not been argued by the learned counsel for the appellant, findings have been recorded by the courts below with regard to the location and dimensions of the property in dispute. As a matter of fact, while adjudicating on issue no.9, the trial court had examined the plaint map, the site map as well as the settlement map which were on record. The appellate court also, while adjudicating the points for determination, took into account the relevant revenue records and other documents in this regard.

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Since the issue of jurisdiction was not raised at the first instance by the defendant, sub-section (1A) of Section 331 of the Act of 1950 would apply.

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The submission of the learned counsel for the appellant that each and every ground raised in the memorandum of appeal should be made a point of determination by the lower appellate court and failure to do so would render the judgment liable to be reversed, is not tenable. The points for determination are required to be framed by the lower appellate court in respect of the issues arising alongwith the contentions put forth and pressed by the parties. It is not the contention of the learned counsel

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for the appellant that arguments were advanced with regard to nonimpleadment of necessary party but the same were not considered by the lower appellate court. A perusal of the judgment of the lower appellate court evinces that the two points for determination framed by it were those that were agitated by the defendant-appellant which were duly considered and determined. No error can be found in this regard in the judgment of the lower appellate court.

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This case is being considered under the provisions of Order 41 Rule 11 of the CPC and this Court has to be satisfied whether any substantial question of law exists meriting admission of the appeal. The questions of law and facts have been adjudicated by the courts below. In the opinion of the Court, there is no substantial question of law meriting admission of this appeal.

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This appeal is, accordingly, dismissed. Date :08.07.2019 SK

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(Jayant Banerji, J)

Mahendra Singh v. Chiddi Singh and 2 Others

Case brief

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Mahendra Singh v. Chiddi Singh and 2 Others

Case brief

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