Dismissed

Prithvi Raj @ Pirthi Raj v. Jai Singh and 4 Others

Allahabad HC8 Jun 2022/170/2022

Case brief

AI extract

What is this about?

A second appeal under CPC 100 against a decree granting perpetual injunction in a suit for possession. The High Court Bench dismissed the appeal at the admission stage, finding no substantial question of law as the latter two pleas were raised for the first time and unsupported by facts.

What did the court decide?

The instant second appeal is dismissed at the admission stage itself.

Prithvi Raj @ Pirthi Raj Vs Jai Singh and 4 Others — Partition | Allahabad HC (2022)

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Court No. - 7

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Case :- SECOND APPEAL No. - 170 of 2022

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Appellant :- Prithvi Raj @ Pirthi Raj Respondent :- Jai Singh And 4 Others Counsel for Appellant :- Vinay Prakash Shukla,Kailash Nath,Ram Kumar Srivastava Ram Kumar

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Vinay Prakash Shukla, learned counsel for the defendant-appellant.

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The instant appeal under Section 100 of Code of Civil Procedure seeks to challenge the judgment and decree dated 23.04.2022 passed by the Additional District Judge, Court No. 8, Sitapur in Civil Appeal No. 84 of 2015 whereby the appeal has been allowed and the judgment and decree dated 24.08.2015 passed by the Civil Judge (Junior Division), Biswan, District Sitapur in Civil Suit No. 36 of 2006 has been reversed and the suit has been decreed.

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The predecessor in interest of the respondents had filed the above mentioned suit for perpetual injunction pleading that the plaintiff and the defendants both are the residence of the same village and their houses are situated near each other. There is a narrow lane between their houses. The plaintiff had pleaded that on 15.10.1997, the then Gram Pradhan had given an abadi land bearing Gata No. 497 measuring 0.03 dismil to the plaintiff on lease on which he had constructed the house.

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Since the execution of the lease, the plaintiff is living on the said land by making a house by putting Chhapar (temporary roof prepared by straws etc.) and he is residing in it. The house of the defendant is situated after the narrow lane in the North of the plaintiff's house. The defendant was forcibly trying to take

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possession of the northern portion of the plaintiff's land whereas he had no right in respect thereof and, therefore, the plaintiff filed a suit. The plaintiff had annexed a site plan alongwith the plaint.

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The defendant-appellant had filed his written statement stating that the land in dispute does not belong to the plaintiff and the said land belongs to the defendants. The Trial Court had issued a Commission for local inspection and the Commissioner had made a local inspection and prepared a site plan.

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The Trial Court had framed the following issues in the suit:-

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(i) Whether on the basis of facts, pleadings in the plaint, the plaintiff is owner and in possession of the land in dispute?

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(ii) Whether the suit has been under valued?

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(iii) Whether the Court fee paid is insufficient?

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(iv) Relief?

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The plaintiff examined himself as PW-1 and he produced two other witnesses and he filed the original lease deed before the Trial Court. The defendant examined himself only as a witness and he did not produce any documentary evidence.

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The plaintiff had got himself examined as PW-1 and he stated that he had been granted a lease in respect of 3 biswa of land. The plaintiff has put up a Chhapar on the leased land and he ties his cattle on the land. He has no concern with any other land situated nearby. PW-2 Balakram had also supported the plaint averments. During the cross-examination, PW-2 stated that the Chhappar has been put up only on a small portion and the total leased land is more than the area covered by the Chhapar. The bamboos standing on the land towards the North of the Chhappar had been planted by the plaintiff. The plaintiff had planted lemon and guava trees towards the East of the

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Chhappar. PW-3 Kamla Prasad also supported the plaint averment and in his cross-examination, he had stated that the plaintiff had been granted a lease of 3 biswa of land. The bamboo has been planted about 8-9 years ago.

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The appellant-Prithvi Raj @ Pirthi Raj had appeared as DW1 and he supported the averments made in the written statement. He has also stated that a lease was granted to him but he could not tell the Gata number of the leased land. He said that his house is situated about 8 hands (about 12 feet) away from the land in dispute. His house is a pucca house and has ingress and egress towards the West and South. His land is situated towards West of the land in dispute. The plaintiff's Chhappar is appurtenant to the land in dispute.

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The Trial Court decided the Issue No. 1 by holding that the plaintiff had stated in his cross examination that he had put a Chhappar on his land and he ties his cattle also on his land. He has no concern with the land situated nearby. The bamboos standing in the South of the defendant's sahan were planted by him.

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The learned Trial Court held that the plaintiff could not prove his possession over the land in dispute. Therefore, the issue was decided against the plaintiff and the suit was dismissed.

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The plaintiff filed an appeal against the aforesaid judgment and decree dated 24.08.2015, which has been decided by the learned Additional District Judge, Court No. 8, Sitapur by means of the judgment dated 23.04.2022, which is under challenge before this Court in the instant Second Appeal.

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The learned Trial Court framed the following point for determination:-

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Whether the appellant is in possession of the land in dispute? The learned

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First Appellate Court analyzed the statements of PW-1 and 3, and he also scrutinized the statements of the defendants, who had stated that he holds a lease of abadi land having an area of 3 biswa. The land in dispute is situated about 8 hands (12 feet) away from his pucca house. The plaintiff's Chhappar is petinent to the house in dispute.

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The lower Appellate Court held that the copies of Khasara and Khatauni available on the record indicate that Gata No. 497 is abadi land and the petitioner was granted a patta of 3 biswa land from out of this Gata, which has been shown in the Commissioner's report by letters a,b,c,d and the plaintiff is in possession of the land in dispute.

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The learned First Appellate Court further held that although the defendant had pleaded that he was given a lease, but during the cross-examination he could not tell the Gata number of the land.

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On the basis of the aforesaid analysis, the learned First Appellate Court held that the plaintiff has been given lease of 3 biswa abadi land from out of Gata No. 497, which has been shown by the letter a,b,c,d and which a Chhappar exists and same bamboo are planted. The defendant could not produce any evidence to prove that the land in dispute does not belong to the plaintiff but it belongs to him.

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Although, the defendants claimed the land d,c,y, r to be his ancestral land, but he could not prove this fact and the plaintiff is in possession of the land in the North of the land shown by the letters d,c,y,r. On the aforesaid ground, the learned First Appellate Court held the land to be in possession of the plaintiff and, accordingly, the learned First Appellate Court allowed the appeal and issued a perpetual injunction restraining the defendant from interfering in possession of the plaintiff over the land in dispute shown by the letters d,c,y,r in the Commissioner's report.

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The defendant has challenged the aforesaid judgment and decree dated 23.04.2022 by filing the instant Second Appeal under Section 100 of Code of Civil Procedure.

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The first question raised by the learned counsel for the appellant is that the Gram Sabha and the State of U.P. are necessary parties to the suit. The sole grievances raised in the suit of the plaintiff was that the defendant was trying to interfere in his possession over the land in dispute and neither any allegation was made in the plaint against the Gaon Sabha or the State of U.P. nor was any relief prayed against any of them. Therefore, I find no force in the submission of the learned counsel for the appellant that the Gaon Sabha or the State of U.P. was a necessary party to the suit. Moreover, this plea has been raised for the first time in the Second Appeal and it was not raised in the written statement or before the learned First Appellate Court and it is not open to the appellant to raise a new plea in the Second Appeal.

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The second question raised by the learned counsel for the appellant is that the First Appellate Court has reversed the findings recorded by the Trial Court without giving sufficient reasons.

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I have discussed the judgment passed by the learned First Appellate Court which indicates that the learned First Appellate Court has discussed the entire evidence available on record including the statements of PW-1, PW-2, PW-3 and DW-1, as well as the lease deed and copies of the relevant extract of the Khasara and Khatauni and thereafter it has recorded its finding.

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Therefore, it cannot be said that the learned First Appellate Court has reversed the findings of the Trial Court without giving any sufficient reasons for the same.

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The learned counsel for the appellant next argued that the

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plaintiff himself as also the witness PW-2 had admitted possession of the defendant over the land in question. The statements of PW-1 and PW-2 which have been discussed in detail, both by the Trial Court as well as by the First Appellate Court do not contain any admission regarding possession of the defendant over the land in dispute.

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Although, the learned counsel for the appellant submitted that the site plan annexed with the plaint as also the site plan prepared by the Commissioner appointed by the Court are incorrect but the defendants have not placed on record any site plan which is correct for him.

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In view of the aforesaid discussions, I find that this appeal does not involve any substantial question of law so as to warrant its admission.

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Accordingly, the instant second appeal is dismissed at the admission stage itself.

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Order Date :- 8.6.2022 Jaswant

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Digitally signed by JASWANT KUMAR Date: 2022.06.16 19:04:57 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Prithvi Raj @ Pirthi Raj v. Jai Singh and 4 Others

Case brief

What is this about?

What did the court decide?

Prithvi Raj @ Pirthi Raj v. Jai Singh and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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