Dismissed

Arya Kanya Madhymic Parishad and Others v. Gomti Prasad and Others

Allahabad HC17 Aug 2023SAPL/601/1986

Case brief

AI extract

What is this about?

In a second appeal concerning a property possession suit, the High Court examined whether the trial and appellate courts erred in deciding the case without a mandated survey commission. The Court held the commission was impossible due to the destruction of base maps and affirmed that deciding the case on documentary evidence was a proper exercise of jurisdiction.

What did the court decide?

The second appeal was dismissed with reference to the judgment and decree dated 18.09.1986.

Arya Kanya Madhymic Parishad and Others Vs Gomti Prasad… — Property and Title | Allahabad HC (2023)

¶1

¶2

Neutral Citation No. - 2023:AHC-LKO:56224

¶3

Court No. - 19

¶4

Case :- SECOND APPEAL No. - 601 of 1986 Appellant :- Arya Kanya Madhymic Parishad And Others Respondent :- Gomti Prasad And Others

¶5

Counsel for Appellant :- S.Mirza,Abdul Rashid,Pawan Kumar Mishra

¶6

Counsel for Respondent :- P.K.Sinha,Vaibhav Raj,Vinod Kumar Hon'ble Jaspreet Singh,J.

¶7

Heard Shri Pawan Kumar Mishra, learned counsel for the appellants and Shri Vaibhav Raj, learned counsel for the respondents.

¶8

This is the defendants’ second appeal assailing concurrent judgment and decree passed by the two Courts whereby suit bearing No.92 of 1965 filed by the original plaintiff Gomti Prasad seeking possession was decreed on 12.04.1983. The defendants’ first appeal also came to be dismissed by means of judgment and decree dated 18.09.1986 in Civil Appeal No.71 of 1983, which has given the opportunity to the defendants-appellants to knock the doors of this Court by means of the instant second appeal.

¶9

The second appeal was admitted on 14.01.1987 on the following substantial question of law, which reads as under:-

¶10

(i) Whether in view of the earlier direction contained in the appellate Court’s judgment dated 22.12.1972 remanding the case to the trial Court with a direction to issue a survey commission, it was open to the lower appellate Court to state that survey commission was no longer required?

¶11

In order to appreciate the controversy involved in the instant second appeal, it will be relevant to notice the facts giving rise to it. The original plaintiff, namely, Gomti Prasad had instituted a suit for permanent injunction/possession bearing No.92 of 1965, it was

¶12

¶13

pleaded that the plaintiff was the owner in possession of a property in dispute, which was indicated in the site plan annexed and forming part of the plaint in suit. It was also pleaded that initially the property belonged to Shri Jagan Nath Prasad, who was the owner of plots bearing No.3875, 3895 and 3896 has also recorded in the first settlement. Shri Jagan Nath Prasad expired leaving behind his two sons, namely, Shiv Ratan Lal and Kashi Prasad. Amongst the two sons, Shiv Ratan Lal expired earlier and on account of a joint Hindu family comprising of Jagan Nath and his two sons. Accordingly, upon the death of Shiv Ratan, his brother Kashi Prasad inherited the full rights. Significantly, the widow of Shiv Ratan, namely, Bhagwan Dei, who continued to be in uninterrupted possession and to the knowledge of the original owner Kashi Prasad, she transferred her properties in favour of Durga Prasad, her son-in-law on 30.11.1936. At this stage, the heirs of Kashi Prasad filed a suit against Durga Prasad, which came to be registered as 18 of 1937 and in the said suit, it was declared that Smt. Bhagwan Dei had perfected her rights by adverse possession and consequently, the suit filed by the heirs of Kashi Prasad was dismissed. In view thereof, Bhagwan Dei, became the owner of the disputed property and after her death she was survived by her three daughters namely, Ram Raji, Brajrani and Ram Kali, who sold the disputed property to the plaintiff Gomti Prasad by means of a registered sale deed dated 08.12.1962. It is on this basis that the plaintiffs had claimed title and ownership and sought the possession of the property from the defendants.

¶14

The defendants No.2 to 4 did not file any controversion to the plaint rather the suit came to be contested only by the defendant Nos.1, 5 and 6.

¶15

The contention of the defendants 1,5 and 6 were that they are the owner of the property and that the plaintiff did not have any right, consequently, unless and until, he established his title, he could not

¶16

¶17

seek the possession or eviction of the defendants from the property in question.

¶18

Initially, after due contest, the suit bearing No.92 of 1965 came to be dismissed by means of judgment and decree dated 17.02.1971. The plaintiff preferred an appeal bearing civil appeal No.74 of 1971 which was allowed by means of judgment and decree dated 22.12.1972 and the matter was remanded to the trial Court to consider the controversy afresh by getting a survey conducted and to ascertain as to the disputed property whether it falls on plots No.3874, 3895 and 3896. Significantly, the defendants preferred F.A.F.O. No.8 of 1973 before this Court which came to be dismissed by means of judgment dated 07.11.1975 and the order of remand was upheld.

¶19

It is after the remand that the trial Court decreed the suit on 12.04.1983 against which the defendants preferred a first appeal, which also came to be dismissed on 18.09.1986, which has prompted them to file the instant second appeal.

¶20

It is in the aforesaid backdrop that the questions of law has been formulated as to whether once the lower appellate Court had directed a survey commission to be conducted, hence, in absence thereof whether it was open for the Court to state that there was no requirement for the survey commission.

¶21

In order to find out regarding the answer to the aforesaid question, it will be appropriate to notice that both the contesting parties were claiming title over the property in question. At this stage, it will also be relevant to notice the order of remand which was made by the lower appellate Court in civil appeal No.74 of 1971 and the relevant portion thereof is being reproduced hereinafter for ready reference:-

¶22

“………...9. It will be found that the pleadings of the parties as to what specific rights Jagan Nath Prasad or his successors had in the suit land

¶23

¶24

were not clarified before framing issues. In the plaint it was alleged that plot Nos.3874, 3895 and 3896 of the first settlement were house and Ahata of Jagan Nath Prasad. This was not wholly sufficient because it did not go to show whether the suit land was the Ahata of Jagan Nath Prasad or the house. Then it will be found that no care was taken to ascertain the plot number of the disputed land. The learned counsel for the appellant contended before me that there is a survey map of some previous case and so, it was not necessary to ascertain the plot number of the disputed land in the present case. The contention is rather fallacious. The previous map, if any, is not binding upon the parties in the present case because the said map was not between the parties inter se. Moreover, from the help of that map, it cannot be conclusively held that as to what was the plot number of the land in suit. The plaintiff has claimed title over plot nos. 3874, 3895 and 3896 only. Unless it could be known as to what is the plot number of the disputed land, the controversy between the parties, if I may say so cannot be resolved effectually and conclusively. The map referred to by the learned counsel for the appellant and which is paper No. C 118 itself goes to show that some part of the disputed land is outside plot No.3896 and is No.3894. Since the very title of the plaintiff depends upon the title of Jagan Nath Prasad and his successors and since the title of Jagan Nath Prasad and his successors is confined to certain plots of the first settlement, the controversy in the present case could not have been effectually resolved without first knowing the plot number of the disputed land. The learned trial Court did not take pains to go deep into the matter. It never occurred to the learned trial Court that it was necessary that the plot number of the disputed land should be found out. There is no admission of the parties that the disputed land bears a particular number. It will further be found that the relief as claimed by the plaintiff in para 12-A of the plaint is not happily worded and if a decree were to be passed in terms of the relief as prayed for it might turn out to mean nothing. In para 12-A of the plaint possession is prayed over a piece of land denoted by certain letters mentioned in it and it is in respect of the map which forms part of the plaint. There are two maps which may be said to be forming part of the plaint. On is the site-plan annexed to the plaint and another is a copy of the commissioner’s map. It was, therefore, necessary for the plaintiff to have clarified the land in respect of the map in which the land mentioned by these letters may be found. Therefore, in view of all

¶25

¶26

the above considerations, it is necessary that the case first shall go back to the learned trial Court where the defects pointed out above be got removed and the suit be then decided according to law.

¶27

10. The appeal, therefore, succeeds.

¶28

Order.

¶29

11. The appeal is allowed and the judgment and decree passed by the learned Munsif are hereby set aside. The suit is remanded back to the trial Court with the directions to readmit it at its original number in the Register of Suits. The learned Munsif shall then issue a survey commission for finding out the plot number or numbers of the disputed land. The learned Munsif shall also give an opportunity to the plaintiff to amend his plaint as discussed in the body of the judgment. If the pleadings are amended, an opportunity shall be given to the the other party to meet the amended pleadings and fresh issue, if any, shall also be framed. The evidence already on record shall be read with all the just exceptions and the parties shall not be permitted to lead any fresh evidence except as may be open to them in law. The suit shall then be decided according to law. The parties shall bear their own costs of this Court and the costs in the Court below hereinbefore and hereinafter shall abide the result of the suit.”

¶30

It is in the aforesaid backdrop that the issue of commission became relevant. As already noticed above that this order of remand dated 22.12.1972 was affirmed by this Court in F.A.F.O. No.8 of 1973 by means of judgment dated 07.11.1975.

¶31

Shri Pawan Kumar Mishra, learned counsel for the appellant has urged that once the lower appellate Court had directed a survey commission to be executed and the said order was affirmed by the High Court by means of its order dated 07.11.1975, then in such circumstances, it was not open for the trial Court who has proceeded to decide the suit without holding and getting a commission issued. The lower appellate Court also fell in the same error and proceeded to decide the matter without getting the survey commission conducted and in absence of its report, it was not open for the two Courts to have

¶32

¶33

given findings regarding title to the property which in term prejudicially affected the rights of the defendants, who were faced with a decree against them for possession.

¶34

Shri Vaibhav Raj, learned counsel for the respondents/plaintiffs states that it is not as if in pursuance of the order passed by the lower appellate Court, which was affirmed by the High Court, the commission was not held, rather the record would indicate that in true compliance of the order passed by the lower appellate Court and affirmed by the High Court, the commission was executed but the same could not be fruitfully done since the basic map, from which the survey commission was to be conducted, was mutilated and torn and despite making best efforts, no other map was available and it is only in this backdrop that once it was found that the commission was almost impossible, the Court proceeded to decide the controversy on the basis of the existing material available on record. It cannot be said that there was any error committed by the two Courts by not getting the commission and rather they have taken note of the various documentary evidence available on record which was filed to establish the respective rights and such findings regarding title and the disputed boundaries of the property are pure findings of fact, which are unassailable in exercise of jurisdiction under Section 100 C.P.C. Consequently, the appeal deserves to be dismissed.

¶35

The Court has considered the rival submissions and also perused the material on record.

¶36

At the outset, it may be noticed that there are two parts of the question which has been formulated, which requires an answer and can be split up as under:-

¶37

(i) The effect of the order of remand dated 22.12.1972 requiring the trial Court to hold a survey commission to determine the property and the title of the plaintiff.

¶38

¶39

(ii) If the said commission is not possible then what is the option available to the Court?

¶40

It is in the aforesaid context that the Court has considered the submissions made by the learned counsel for the parties and also meticulously perused the material on record.

¶41

Apparently, there is a title dispute between the parties and which relates to plots No.3895 and 3896 primarily. The plaintiffs claimed title on the property on the basis of the original sale deed dated 08.12.1962, which is on record as exhibit 10, having purchased the same from the daughters of Bhagwan Dei. Bhagwan Dei was the widow of Shiv Ratan Lal, who was the son of Jagan Nath Prasad. Needless to say that this Court has already indicated the pedigree and it is not in dispute between the parties that in the records of the first settlement, Jagan Nath Prasad was recorded in respect of plots No.3875, 3895 and 3896. It is equally true that there has been multiple litigations between the family members of Jagan Nath Prasad himself and also by the Arya Kanya Pathshala. On the other hand, some part of the property, which is claimed by the rival parties, overlap plot No.3896. It is in the aforesaid context, that both the ownership of the plaintiff as well as the extent of that ownership over plot No.3896 became the soul of the controversy raging between the parties.

¶42

This Court has already reproduced the order of remand dated 22.12.1972 whereby the lower appellate Court thought fit for getting a survey conducted. In this background, it will also be relevant to notice that the plaintiff has submitted and acceded to the holding of the survey commission, however, the record indicates that since the basic map, from which the survey could be conducted, was found mutilated and torn and there was no other copy available in the archives or with the revenue departments. Thus, for the said reason, the survey could not be done. The learned counsel for the appellant could not dispute this factual situation. It is not the case that despite the order of remand

¶43

¶44

made by the lower appellate Court, which was affirmed by this Court by means of order dated 07.11.1975, yet the plaintiff or the trial Court did not comply with the same. Accordingly, it will not be appropriate to observe that the trial Court or the plaintiff had not cooperated or did not make efforts to get the survey commission done. It will be a misnomer to state that the lower appellate Court in the second round of litigation, after the remand was ordered, had observed that there was no requirement of the survey commission.

¶45

From the perusal of the judgment rendered by the trial Court dated 12.04.1983 as well as the judgment of the lower appellate Court dated 18.09.1986, both have categorically noticed the impossibility of getting the commission executed and it is not that they observed that the commission was not required. There is a world of a difference in saying that a direction of a Superior Court could not be complied with on account of certain impossibilities and it is altogether another thing to say that the direction of the Superior Court is not to be complied with. The connotation of the two are quite different and one cannot be confused with the other. It is accordingly, this Court finds that there is no such reference to impute either to the trial Court or to the lower appellate Court any motive or to indicate that they did not comply with the directions given by the lower appellate Court, earlier, for getting a survey conducted, while remanding the matter.

¶46

Now in the aforesaid situation, the next question that arises is whether if the survey commission was not possible as the basic document upon which the survey could be conducted was the basic map, which was mutilated and torn, which could not be utilized. Whether the suit could remain pending sine die or the Court would be justified in proceeding to decided the controversy in light of the material and evidence led by the parties before it. It is with the aforesaid view in mind that both the trial Court as well as the lower appellate Court found it in the fitness of things that despite the survey

¶47

¶48

commission which could not be done for the reason as noticed above yet, it proceeded to decide the matter after giving opportunity of hearing to the parties to lead their evidence, once again in support of their contentions so that the matter, which was initially pending since 1965, is given a quietus and is taken to its logical conclusion.

¶49

Now, in the aforesaid backdrop, if the instant matter is seen, it would be found that both the parties had led copious evidence and it has been taken note of by the trial Court as well as the lower appellate Court. Significantly, both the two Courts have taken note of the pleadings as well as the decision rendered in an earlier suit bearing No.112 of 1960, which was marked as exhibit A3 as well as another decision in the suit bearing No.60 of 1947 marked as exhibit 14. Both the Courts have also noticed the decision in the regular suit No.18 of 1937, which was contested between the heirs of Kashi Prasad and Durga Prasad, who was the son-in-law of Bhagwan Dei. The two Courts have also noticed the record of the first settlement wherein the name of Jagan Nath Prasad was recorded in respect of plots No.3875, 3895 and 3896.

¶50

After taking a wholesome view of the documents which have been mentioned above, amongst others, and which predate the dispute between the plaintiff and the defendants of the instant appeal, the two Courts came to a conclusion that insofar as the right of the plaintiff is concerned, the same stood clearly established from the fact that Jagan Nath Prasad was recorded as the owner in respect of plots No.3875, 3895 and 3896 during the first settlement. The judgment of regular suit No.18 of 1937, which was a suit which was filed by the heirs of Kashi Prasad (son of Jagan Nath Prasad) against Durga Prasad (sonin-law of Bhagwan Dei, widow of Shiv Ratan Lal, Son of Jagan Nath Prasad) wherein it was categorically held that Bhagwan Dei had perfected her rights by adverse possession and on the aforesaid ground, the suit of the heirs of Kashi Prasad came to be dismissed by

¶51

¶52

means of judgment ad decree dated 28.09.1937. The Courts also noticed that in the judgment which was filed by the parties relating to R.S. No. 112 of 1960 which was marked as exhibit 3 this was a suit for permanent injunction filed by Sukhdev Prasad against Arya Kanya Pathshala. Even in this case the pedigree relating to Jagan Nath was established and Sukhdev Prasad, the plaintiff had also claimed his rights from Bhagwan Dei and Durga Prasad. The defendant was Arya Kanya Pathshala and it was noticed that the defendant of the said suit could not establish their possession consequently, the suit came to be decreed in favour of Sukhdev Prasad.

¶53

The two courts below being conscious of the fact that the survey could not be concluded took note of the various documents including the plaints, but judgment and decree of the earlier suits and found that in respect of the property in question it was clearly shown that on the southern side, there was the house of Puttu Lal Gupta and in another litigation which was contested by Puttu Lal Gupta with Arya Kanya Pathshala, the house and the property of Jagan Nath was shown on the northern side and the road on the eastern side which also corroborated with the other documents and the earlier judgments as mentioned above and it is taking note of all the various contemporaneous judgments including the oral evidence and thereafter, both the Courts have recorded a finding that the plaintiffs were the owners having acquired valuable rights from the daughters of Bhagwan Dei, whose rights had been affirmed in judgment and decree passed in suit No.18 of 1937. Thus, insofar as the title is concerned, the same was established and there is nothing which could be pointed out to dispute the same.

¶54

Now the other issue relating the identity of the property is concerned, the same was also clearly established on the basis of judgment and decree, plaints and written statements filed in various other suits which related to R.S. No.112 of 1960, 60 of 1947 and 18 of

¶55

¶56

All these documents were appropriately proved in accordance with law and thus, the two Courts as who were handicapped in absence of the survey commission as the same was not possible, for the reasons already noticed above, hence, the Court after granting an opportunity of hearing to the parties including to lead evidence which was availed by the plaintiff and not the defendants and then it proceeded ahead to decide the suit on that material available on record and the findings which have been returned are findings of fact. Apart from this, no perversity could be pointed out in the said finding i.e. to say that either it is based on inadmissible evidence or it is on incorrect reading of the documents or that the inference which has been drawn is patently illegal that no person could arrive at such a conclusion on the basis of a material before it.

¶57

It is in this view of the matter, this Court finds that the two courts did not commit any error in decreeing the suit which has been affirmed by the lower appellate Court. The two courts clearly noticed that an attempt was made to get the survey executed, but it could not be done for reasons beyond control which has been noticed in the two order and not disputed by the counsel for the appellant. Hence, the two Courts have rightly, after affording opportunity of hearing including the right to lead fresh evidence in respect of their contentions, had proceeded to decide the matter, which cannot be termed to be an illegal exercise of to jurisdiction. For all the aforesaid reasons, this Court is of the clear opinion that the appeal lacks merit and is accordingly, dismissed.

¶58

The judgment and decree dated 12.04.1983 passed in regular suit No.92 of 1965 and the judgment and decree dated 18.09.1986 passed in civil appeal no. 71 of 1983 by IIIrd Additional District Judge, Behraich are affirmed. In the facts and circumstances, there shall be no order as to costs. The record of the trial Court be remitted expeditiously.

¶59

Order Date :- 17.8.2023

¶60

Gurpreet Singh

¶61

Digitally signed by :- GURPREET SINGH High Court of Judicature at Allahabad, Lucknow Bench

Arya Kanya Madhymic Parishad and Others v. Gomti Prasad and Others

Case brief

What is this about?

What did the court decide?

Arya Kanya Madhymic Parishad and Others v. Gomti Prasad and 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

Similar cases

M/S Taj Book Stall Thru. Prop. and Another Vs Union Bank of India Thru. Branch Manager

Prem Prakash Srivastava and Ors. Vs Shri Gaurav Agarwal and Ors.

The Municipal Board Sitapur Vs M/S Tha Oudh Sugar Mills Ltd.

U.P.State Electricity Board and Others Vs Rizwan Ahmad

Khurbhu Vs Sahtoo and Others

The Hindustan Sugar Mills Now Bajaj Hindusthan Sugar Ltd. by G.M.(Legal) Sh.Neeraj Kumar Srivastava Vs Shiv Chandra and Another