Dismissed

Shri Rajendra Prasad Sharma v. State of U.P. and Another

Allahabad HC19 Jul 2021SAPL/69/2021

Case brief

AI extract

What is this about?

This Second Appeal challenged the dismissal of a civil suit for a permanent injunction seeking protection against demolition of a shop. The Court affirmed the appellate court, holding that the appellant failed to prove the shop was on the disputed plot or that the original owner was a lawful tenant, and that their possession was not long-standing as claimed.

What the court decided

AI extract

Shri Rajendra Prasad Sharma Vs State of U.P. and Another — Property and Title | Allahabad HC (2021)

¶1

¶2

Reserved on 12.03.2021 Delivered on 19.07.2021.

¶3

Case :- SECOND APPEAL No. - 69 of 2021

¶4

Appellant :- Shri Rajendra Prasad Sharma Respondent :- State of U.P. and Another Counsel for Appellant :- Dinesh Kumar Chadha

¶5

Hon'ble Saral Srivastava,J.

¶6

Heard Sri Rishi Chadha, learned Advocate, holding brief of Sri Dinesh Kumar Chadha, learned counsel appearing for the appellant.

¶7

The present appeal is directed against the judgement and order dated 29.01.2021 passed by the Additional District and Sessions Judge, Court No.14, Agra in Civil Appeal No.86 of 2012, State of U.P. and Another Vs. Shri Rajendra Prasad Sharma and Another, whereby the appellate court has dismissed the suit of the appellant.

¶8

The brief facts giving rise to the present appeal is that the plaintiff/appellant instituted a suit being Original Suit No.359 of 1995, Shri Rajendra Prasad Sharma and another Vs. State of U.P. and another, praying for a decree of permanent injunction restraining the

¶9

¶10

respondents not to interfere in the peaceful possession of the shop in question and further not to demolish the shop.

¶11

The case of the plaintiff/appellant was that the plaintiff no.2, namely, Bhagwati Prasad Saraswat (since deceased) was tenant of the shop measuring 10 x 20 ft. situated at Bhagwan Talkies, Agra on a rent @ Rs.300 per month of Late R.N. Sarin who was the owner of the shop. It was further pleaded that the shop in question was originally in tenancy of Mrs. Thankamma widow of Late Shri K. Uni Krishnan and Anil Kumar son of Late Shri K. Uni Krishnan since the year 1982, who later on delivered the possession of the shop to the plaintiff No.2 in the year 1993, who established the business of restaurant in the shop.

¶12

The plaintiff/appellant no.2, namely, Bhagwati Prasad Saraswat later on delivered the possession of the shop in question to the plaintiff/appellant no.1, namely, Rajendra Prasad Sharma on 28.02.1995 along with the entire belongings of the shop and since then he has been carrying on the business in the shop in question in the partnership of Swatentra Kumar, son of Hathi Lal. The further averment in the plaint is that the cause of action for the suit arose on 08.03.1995 when the employees of

¶13

¶14

the defendants/respondents visited the shop and threatened the plaintiff/appellant for demolition of the shop in question.

¶15

The suit was contested by the defendants/ respondents by filing written statements contending interalia that the allegations in the plaint are false and incorrect. The plaintiff/appellant is not the owner of the shop in dispute and shop in dispute is not constructed on Gata No.531. The Irrigation Department is the owner of the land on which the shop is constructed.

¶16

The trial Court on the basis of the pleadings between the parties has framed as many as 8 issues. The issue no.1 which is relevant in the context of the present case is extracted here-in-below:-

¶17

“ कयावादीगणिववािदतसंपितपरिकराएदारकेरपमेकािबज़वदिखलहै ?”

¶18

The trial Court after appreciating the evidence and material on record, particularly, the statement of plaintiff/appellant no.1-Rajendra Prasad Sharma and paper nos.95Ka and 95Ga which were the documents relating to the sanction of map for construction of the shop, recorded a finding that the shop has been constructed since long. Thus, it is established that the plaintiff/appellant was in possession over the shop in

¶19

¶20

question since long time and as it is settled in law that even if a person is in illegal possession of a property, he can be evicted only through due process of law. Accordingly, the trial Court decided the Issue No.1 in favour of appellant and decreed the suit.

¶21

Feeling aggrieved by the order of the trial court dated 20.3.2012, the defendants/respondents preferred a Civil Appeal No.86 of 2012, State of U.P. and Another Vs. Rajendra Prasad Sharma and another.The appellate court after appreciating the facts and evidence on recored, reversed the finding of the trial Court on Issue No.1 by the impugned judgement and order dated 29.01.2021. The reason given by the appellate court in reversing the finding of the trial court shall be dealt with at the appropriate place.

¶22

Challenging the aforesaid order, learned counsel for the appellant has contended that the appellate court has erred in law in dismissing the suit, inasmuch as there was non-compliance of Order 41 Rule 31 C.P.C. as the appellate court has failed to give reason for setting-aside the finding of the trial court.

¶23

Further submission made by the learned counsel for the appellant was that since the defendants/respondents

¶24

¶25

were not sure of what property they are claiming for, therefore, plaintiff/appellant’s long settled possession over shop in dispute cannot be disturbed and hence, the appellate court has committed manifest illegality in dismissing the suit.

¶26

In support of the aforesaid submissions, learned counsel for the plaintiff/appellant has placed reliance on the following judgements:-

¶27

(i) AIR 1989 SC 2097 (Krishna Ram Mahale (dead) by his LRs., Vs. Mrs. Shobha Venkat Rao)

¶28

(ii) AIR 1999 SC 1666 (Prataprai N. Kothari Vs. John Braganza)

¶29

(iii) AIR 2008 SCW 4022 (Subramaniaswamy Temple, Ratnagiri Vs. Kanna Goundar (dead) by L. Rs.)

¶30

Considered the submissions advanced by learned counsel for the plaintiff/appellant and perused the record.

¶31

From the facts detailed above, it is evident that the case of the plaintiff/appellant was that the shop in question is owned by one Shri R. N. Sarin, who had rented out the shop in question to one Mrs. Thankamma,

¶32

¶33

widow of Late Shri K. Uni Krishnan and Anil Kumar son of Late Shri K. Uni Krishnan in the year 1982. Later on, Mrs. Thankamma delivered the possession of the shop to the plaintiff no.2 Bhagwati Prasad Saraswat, who carried on the business of restaurant and appellant no.1 got the possession of the shop in question from the plaintiff no.2 Bhagwati Prasad Saraswat on 28.02.1995. The cause of action for filing the suit arose on 08.03.1995 when the employees of the defendants/respondents visited the shop of the plaintiff/appellant and threatened to demolish the shop in question. The trial court returned a finding that since the evidence on record establishes that the plaintiff/appellant is in settled possession over the shop in question since long, therefore, his possession cannot be disturbed, except in accordance with law.

¶34

The appellate court by reversing the finding of the trial court found that the trial court while returning the aforesaid finding has failed to appreciate that Shri R.N. Sarin, who is the owner of the shop did not appear before the court to support the case of the plaintiff/appellant in respect of his claim with regard to his tenancy over the shop in question. The appellate court further considered that no evidence has been adduced by the appellant with

¶35

¶36

regard to the ownership of the shop in question of Shri R.N.Sarin and further evidence on record shows that the possession of the shop in question was handed over to the appellant by plaintiff no.2 on payment of Rs.50000/-.

¶37

The appellate court further held that from the evidence on record, it is manifest that the appellant/ plaintiff without establishing the ownership of Shri R.N. Sarin over the shop in question, instituted a suit seeking injunction and, therefore, the finding of the trial court that since the possession of the plaintiff/appellant is long standing, hence, he cannot be evicted, except in accordance with law is perverse. In the opinion of the Court, the finding returned by the appellate court is correct and based upon proper appreciation of evidence on record.

¶38

Learned counsel for the appellant could not point out from the record that any evidence was adduced by the appellant to prove the title of Shri R.N.Sarin over the shop in question and the plaintiff/appellant is the lawful tenant of Shri R.N.Sarin.

¶39

The plaintiff/appellant also could not establish that the shop in question is situated on plot No. 531 . As per the case of the plaintiff/appellant, the shop in question is on

¶40

¶41

plot No. 531 and, therefore, the burden was upon the plaintiff/appellant to prove that the shop in question is situated on plot no.531 with which the defendants/ respondents have no concern.

¶42

It is also relevant to point out that the finding of the trial court that the possession of the plaintiff/appellant is long standing possession, is also perverse and against the record, inasmuch as, as per the claim of the plaintiff/ appellant the possession of the shop in question was delivered to him on 28.02.1995 from the plaintiff no.2, namely, Bhagwati Prasad Saraswat, whereas the suit has been instituted by the plaintiff/appellant on 10.3.1995, as is evident from the plaint. Therefore, this fact clearly reflects that the possession of the plaintiff/appellant over the shop in question is not long standing possession and the suit has been instituted malafidely with an intention to grab the property.

¶43

Thus, from the discussions made above, it is evident that the appellate court has given independent reasons in not concurring with the finding of the trial court and in reversing the same. Hence, the submissions of learned counsel for the appellant that the appellate court

¶44

¶45

has failed to comply with the requirement of Order 41 Rule 31 C.P.C. is misconceived and not sustainable.

¶46

So far as the second contention of the learned counsel for the plaintiff/appellant that since the defendants were not sure of the property of which they are claiming for, therefore, the appellate court has erred in disturbing the long standing possession of the appellant over the shop in question is concerned, the said contention is also misconceived for the reason that the suit has been instituted and burden was upon the appellant to prove that the shop in question is situated over the plot No. 531 and Shri R.N.Sarin was the owner of the shop in question and he was a lawful tenant of the shop in question. Further, it is evident from the record that the possession of the plaintiff/appellant is not a long standing possession, inasmuch as according to his case, he got the possession of the shop in question on 28.02.1995 from plaintiff no.2, namely, Bhagwati Prasad Saraswat and instituted the suit on 10.03.1995, therefore, the second contention is also misconceived.

¶47

So far as the judgements relied upon by the learned counsel for the appellant are concerned, it is no doubt true that it is settled in law that if the possession of a

¶48

¶49

person over the property is long standing possession, he cannot be evicted, except in due process of law. The judgements relied upon by the learned counsel for the appellant are not applicable in the facts of the present case, inasmuch as the possession of the plaintiff/ appellant over the shop in question is not a long standing possession and, therefore, the judgements relied upon by the learned counsel for the appellant is not applicable in the facts of the present case.

¶50

Since, no substantial question of law arises in the present appeal, the appeal is devoid of merit and is dismissed accordingly. No order as to costs.

¶51

Order Date :-19.07.2021 NS

Shri Rajendra Prasad Sharma v. State of U.P. and Another

Case brief

What is this about?

What the court decided

Shri Rajendra Prasad Sharma v. State of U.P. and Another

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Smt. Pooja Devi Vs State of U.P. and 4 Others

Nitish Mishra and 8 Others Vs Union of India and Another

C/M Sri H.P. Singh(Junior High School) Krishi Inter College and Another Vs State of U P and 4 Others

Ashok Kumar Vs Yagya Dutt

Raghuraj Singh Vs Adhishashi Abhiyanta (Nalkoop) and 2 Others

Sudhir Sharma and 2 Others Vs Anuj