Remanded

Rajendra Rai and Another v. Chandrika Prasad and 2 Others

Allahabad HC20 Jan 2020SAPL/435/2018

Case brief

AI extract

What is this about?

Second appeal regarding property boundary dispute where courts below failed to address dimension ambiguity. The High Court set aside lower orders and remanded for Revenue Commissioner demarcation to clarify tract boundaries before deciding the suit.

What did the court decide?

Appeal disposed; orders of courts below set aside; remanded to trial court; Revenue Commissioner appointed to demarcate 207 kari and 10 kari lands.

Rajendra Rai and Another Vs Chandrika Prasad and 2 Others — Partition | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 435 of 2018

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Appellant :- Rajendra Rai And Another Respondent :- Chandrika Prasad And 2 Others Counsel for Appellant :- Suresh Kumar Srivastava,Amish Kumar Srivastava Counsel for Respondent :- Kamal Kumar Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri Suresh Kumar Srivastava, learned counsel for the appellants and Sri Kamal Kumar Singh, learned counsel for the respondents.

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This second appeal has been filed by the appellants, who are defendants no. 1 & 2 before the trial court being aggrieved by the judgment and decree passed by the Additional District Judge, Court No.2, Mau dated 29.01.2018 in Civil Appeal No. 354 of 1995 (Rajendra Rai and others Vs. Chandrika Prasad and others) which was filed challenging the judgment and decree passed by the learned 9^th Civil Judge (Junior Division), Azamgarh on 07.09.1995 arising out of Original Suit No. 126 of 1982 between Chandrika Vs. Rajendra Rai and others.

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Brief facts, leading to present appeal, are that three persons, namely, Gopalnath, Bhopalnath and Dhanpalnath are owners of 217 kari of land contained in survey no.480 at village Bela Sultanpur, District Azamgarh which is at present in District Mau, after reorganization of District.

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Vide sale deed dated 26.9.1981 these three owners jointly executed a sale deed in favour of plaintiff-Chandrika Prasad and defendant no.3 Gulab Chandra for 207 kari. Thereafter another sale deed was executed by the same vendor in favour of Rajendra Rai and Surendra Rai for 10 kari. Plaintiffs' case originally was that these defendants no. 1 & 2, namely, Rajendra Rai and Surendra Rai have encroached upon same area purchased by them and therefore, they prayed for permanent injunction restraining the defendants no. 1 and 2 from raising any new construction upon an area purchased by them.

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During the pendency of the suit, allegation was made that

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defendants no. 1 & 2 raised some construction in the area allegedly encroached by them and therefore, through amendment additional relief was sought in addition to mandatory injunction permitting demolition of such encroached structure.

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The suit was dismissed. Plaintiff filed First Appeal. In the First Appeal, vide order dated 30.10.1993 II Additional Chief Judicial Magistrate, Azamgarh remanded the matter to the trial court after recording a specific finding that as per original sale deed filed by the rival parties though the area purchased by the plintiffs is not in dispute but its dimension has not been mentioned in the sale deed as a result of which ambiguity has cropped up. For the purpose of clarity, the relevant portion of the trial court order dated 30.10.1993 is extracted herein:-

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^^ ------------bu nksuksa gh c;ukeksa esa oknh ,oa izfroknh f}rh; i{k } kjk dz; dh xbZ tehu 480 uacj esa fdruh yEckbZ& pkSMkbZ eas gS vkSj fdl vksj fLFkr gS vFkkZr mldh yEckbZ fdl fn'kk ls fdl fn'kk dh rjQ vksj fdruh rFkk pkSMkbZ fdl fn'kk ls fdl fn'kk dh rjQ vksj fdruh gS\ bldk dksbZ mYys[k ugha gSA blh izdkj izfroknh izFke i{k }kjk izLrqr c;ukesa esa Hkh muds }kjk dz; dh xbZ 10 dM+h tehu dh yEckbZ pkSMkbZ fdruh vkSj fdl vksj gS\ bldk dksbZ Li"V fooj.k ugha gSA okni= ,oa izfrokni= esa Hkh nksuksa i{kksa dh tehu dh uki tks[k ,oa yEckbZ pkSMkbZ ugha nh xbZ gSA oknhx.k ,oa izfroknhx.k izFke i{k dh vksj ls izLrqr lk{khx.k us vius C;kuksa esa Hkh bl fcUnq ij dqN ugh dgk gSA tc fd okLro es a izfroknh izFke i{k us oknh ,oa izfroknh f}rh; i{k dh tehu ij voS/k fuekZ.k fd;k gS ;k ugha ;g rHkh lqfuf'pr gks ldrk gS tc ;g Li"V gks lds fd oknh ,oa izfroknh f}rh;i{k us tks tehu [kjhnk og fdruh yEch vkSj fdruh pkSM+h Fkh vkSj izfroknhx.k izFkei{k us tks tehu [kjhnk mldh yEckbZ pkSM+kbZ D;k Fkh\

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Learned counsel for the appellants submits that direction regarding the dimension of the suit property as contained in order dated 30.10.1993, has been overlooked by the learned trial court and first Appellate Court. They have dealt with the matter merely on the basis of boundaries, thus the impugned orders being in violation of specific direction passed by the court on 30.10.1993

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suffers from infirmity.

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After arguing at length, learned counsel for the parties are now in agreement that true and correct position can be ascertained only when the disputed grey areas are sorted out. It is admitted position that sale deed executed in favour of plaintiff, by his vendor had transferred 207 kari of land in their favour. In this very sale deed, it is mentioned that in North and West corner vendor's holding he his left with-0-10 (10) kari of land. This land was later on transferred in favour of Rajendra Rai and Surendra Rai, who are the appellants before this Court. Subsequent to this it has also come on record and it is an admitted position that plaintiff sold out of their joint holding with defendant no.3, measuring 207 kari of land an area measuring 173 kari in favour of Khairunisha and in the sale deed dated 2.8.2005 it is mentioned that such land transferred in favour of Khairunisha is subsequent to earlier transfer made by the plaintiff in favour of Jainul.

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Annexure-10 to this appeal is a statement of Chandrika, under Order 10 Rule 2 of C.P.C. It is mentioned that out of 207 kari he had transferred 36 kari to Jainul and the land sold in favour of Jainul is in the east of land of Chandrika. It is further mentioned that in north there is 36 kari road. Smimilarly, in the east there is a chak road of 10 kari in west as well as south the land of vendor Chandrika exists. Admittedly, after selling 36 kari land in favour of Jainul, plaintiff Chandrika & defendant no.3 were not left with 176 kari of land. This in fact had only 171 kari of land.

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From perusal of the sale deed executed by the plaintiff Chandrika in favour of Khairunisha, which is available on record, it is apparent that in said sale deed, Chandrika has mentioned that he has sold 173 kari of land in favour of Khairunisha. This vital aspect has been over looked by the courts below that when Chandrika had admittedly purchased only 207 kari of land from Gopalnath, Bhopalnath and Dhanpalnath then how he was entitled to transfer/sale 209 kari of land (36 kari in fvour of Jainul

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plus 173 in favour of Khairunisha). Therefore, in fact, both the courts below have missed bulls eye. It appears that this aspect was not elaborated before them, which is crux of the matter. Thus sale deed executed in favour of Khairunisha is void to the extent of 2 kari of land, being in excess of the title of the plaintiff Chandrika & defendant no.3.

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In view of aforesaid discussion, the matter is remanded to the trial court on the following two grounds, namely,-

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(1) Whether the plaintiff Chandrika was entitled to sell more than what he had purchased and was in possession in favour of Jainul and Khairunisha?

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(2) The trial court shall order for appointment of Revenue Authority not lower than Revenue Inspector who shall carry out the demarcation of two properties i.e. 207 and 10 kari at the first instance and while doing so mention existing dimension of the property which was sold by the vendor in favour of the plaintiff and the defendant no.3 i.e. 207 kari viz-a-viz 10 kari which was purchased by defendants no. 1 and 2, who are appellants before this Court. It will also demarcate land of Jainul & Khairunisha.

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For the aforesaid purpose, it is necessary to direct that the parties who are represented through counsel shall appear before the trial court on 12.2.2020 for which no separate notice will be required. The trial court shall appoint necessary Commissioner within 10 days of the first appearance of the parties i.e. on or before 24.2.2020. Thereafter, taking into consideration the nature of crop, if any, sown on the said land contained in 207 kari in Araji no.480, the Revenue Commissioner after giving necessary notice to the parties, who are either title holders or in possession of the land contained in Araji no.480 shall carry out demarcation on or before 30.4.2020. Thereafter, the trial court shall decide the suit on or before 29.5.2020.

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Orders passed by the courts below are set aside.

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With the aforesaid direction, the appeal is disposed of.

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Order Date :- 20.1.2020 OP

Rajendra Rai and Another v. Chandrika Prasad and 2 Others

Case brief

What is this about?

What did the court decide?

Rajendra Rai and Another v. Chandrika Prasad and 2 Others

Case brief

What is this about?

What did the court decide?

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