Dismissed

Maithli Sharan v. Lavkesh and 4 Others

Allahabad HC8 Feb 2024/27/2024

Case brief

AI extract

What is this about?

In this second appeal challenging the dismissal of a suit for permanent injunction based on a 1956 land receipt, the court held that the appellant failed to prove possession or succession rights. The supreme court precedent relied upon was distinguished. The appeal was dismissed for lack of evidence and without substantial question of law.

What did the court decide?

Second Appeal No. 27 of 2024 dismissed; no interference with concurrent findings of lower courts allowed.

Maithli Sharan Vs Lavkesh and 4 Others — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:11674

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Court No. - 4

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Case :- SECOND APPEAL No. - 27 of 2024

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Appellant :- Maithli Sharan Respondent :- Lavkesh And 4 Others Counsel for Appellant :- Rakesh K. Tripathi,Om Prakash Gupta

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Hon'ble Rajnish Kumar,J.

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Heard Sri Rakesh K. Tripathi learned counsel for the appellant.

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This second appeal has been filed against the judgment, order and decree dated 23.11.2023 passed by learned Additional District Judge, Court no.1, Gonda in the Civil Appeal no.61 of 2017 (Maithli Sharan vs Lavkesh and ors) and judgment, order and decree dated 11.10.2017 passed by learned Additional Civil Judge Ist (S.D) Court no.1 Gonda in Regular Suit no.04 of 1996 (Maithli Sharan vs Rajaram and ors).

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Learned counsel for the appellant submits that the appellant had filed suit for permanent injunction on the basis of possession, however, without framing any issue in regard to the possession or recording any finding in this regard, the suit was dismissed, therefore, the appellant had filed the appeal, which has also been dismissed without considering it whereas the suit for permanent injunction could not have been decided without recording any finding in regard to the possession. He relies on the judgment of the Apex Court in case of Poona Ram vs Moti Ram (Dead) through legal representatives and others ; (2019) 11 SCC 309.

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I have considered the submissions of learned counsel for the appellant and perused the records.

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The appellant had filed the suit for permanent injunction claiming right over plot no.109B situated at Mohalla-Chai Tola, Pargana-Nawabganj, Tehsil-Tarabganj, District-Gonda on the basis of permission granted by the Ayodhya State through receipt issued in the year, 1956. The receipt was issued by one Wazir Khan on behalf of Ayodhya State. The appellant sought permission of the Nagar Palika for construction of house on the said land on 07.07.1992 but no construction was made.

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During trial, the father of the appellant was produced as P.W-2, in favour of whom, the aforesaid receipt was issued in the year, 1956, who could not even prove that Wazir Khan had any right to issue any receipt on behalf of Ayodhya State. A

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categorical finding has also been recorded that as to how the appellant came into possession on the basis of the aforesaid receipt could also not been proved. He also admitted that some land was purchased adjacent to the land in dispute, therefore insufficiency of fund for construction of house after 1992 is not proved.

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Even otherwise, the appellant had no right to file the suit because admittedly the receipt was issued in favour of the father of the appellant Bajrang Sharan @ Bajrang Lal, who was alive but the suit was filed by the appellant, who was son without showing as to how the appellant got the land in dispute.

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The appeal filed by the appellant has also been dismissed considering the evidence adduced before the trial Court.

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So far as the judgment relied by learned counsel for the appellant is concerned, the same is not applicable on the facts and circumstances of this case because the appellant could not prove as to how he came into possession on the land in dispute.

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In view of the above, this Court is of the view that there is no illegality or error in the findings recorded by the trial court as well as appellate court, therefore no interference is required in concurrent findings recorded by the court's below and the appellant could even not have filed the suit. No substantial question of law arises in this appeal.

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The appeal is, accordingly, dismissed .

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................................. (Rajnish Kumar,J.)

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Order Date:- 8.2.2024 Harshita

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

Maithli Sharan v. Lavkesh and 4 Others

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Maithli Sharan v. Lavkesh and 4 Others

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