Appeal against dismissal of ownership claim. Court upheld finding that land was not appurtenant to appellant's house and ownership wasn't proved, ruling Section 9 application was implicit in findings.
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Neutral Citation No. - 2024:AHC-LKO:46738
Court No. - 6
Case :- SECOND APPEAL No. - 313 of 2018
Appellant :- Nathu Ram And Another Respondent :- Mohd.Taufiq And Anr. Counsel for Appellant :- Vijay Kumar Pandey,Anu Pratap Singh,Manuvendra Singh,Mohiuddin Khan
Hon'ble Rajnish Kumar,J.
(ii) Whether the lower appellate court ignoring the provisions of Section 9 of the U.P. Z.A. & L.R. act could deny the claim of the appellants/defendants?”
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possession of land in dispute was also added. The suit was filed alleging that the respondent-plaintiffs are in possession of the land in dispute since the time of father-in-law of the father of the respondentplaintiffs Meer Bux. Kalushah was the maternal grand father of the respondent-plaintiffs and he was in possession of the land in dispute situated on the eastern side of the abadi land. The sons and daughter of Kalushah had died. The parents of the respondent-plaintiffs came into possession during the time of Kalushah and had made madaha, chhapar, charahi, khuta and planted trees and are in possession of the same since abolition of Zamindari. The land in dispute alongwith the land attached on the eastern side settled with the father of the respondent-plaintiffs Meer Bux who became the owner of the constructions and trees therein. Thus, he became the owner of the land in dispute under Section 9 of the U.P. Z.A. & L.R. Act 1950 (here-in-after referred to as the Act of 1950). After death of Meer Bux about three years back, the respondent-plaintiffs and their brother Mohd. Rafiq came into possession of the land in dispute, but Mohd. Rafiq went to his in-laws house and settled there. He left his portion of land and abadi in favour of the respondent-plaintiffs. Thus the respondent-plaintiffs have equal share in the land in dispute.
5.It was also stated that there was one tree of Mahua and two Baas Kothi planted by the father of respondent-plaintiffs on the land in dispute which were cut by the appellant-defendants during pendency of the suit on 20.04.2006 and made forcible possession on the part of the land in dispute marked as A, B, F, E and made new construction thereon, which is shown as M 12 in the map and also constructed a toilet and some other construction on which there is no roof. A hand pump and thatch on the southern side of M-12 was also kept and accordingly the possession of the respondent-plaintiffs was taken away. The alternative plea of adverse possession was also taken on the ground that the respondent-plaintiffs are in possession of the land
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in dispute and it is in the knowledge of the appellant-defendants since long time. It was also alleged that the house of the appellantdefendants is at a long distance from the land in dispute on the eastern side which is in the middle of the village where all his works of abadi are being done. The appellant-defendants have no concern with the land in dispute. Since the appellant-defendants used to threaten to make possession and cut trees and stop the flow of water and made construction on the land in dispute, therefore the suit was filed for permanent injunction in regard to the land in dispute marked as A, B,F,E. During pendency of the suit, the respondent-plaintiffs had made possession on the land in dispute, therefore prayer for possession was also added.
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concern with the land in dispute on the western side of his house. It has further been alleged that as per the pedigree of the respondentplaintiffs in paragraph 21A of the written statement, there was a son of Kalushah, namely Niyamat and his daughter Jaitulnisha who were besides the mother of the respondent-plaintiffs Mariyam Begum. The descendants of the son of Kalushah i.e. Niyamat Ali are still residing on the land which they got from Kalushah. Therefore the claim of the respondent-plaintiffs that Kalushah had only one daughter Mariyam Begum, from whom the property has come to the respondentplaintiffs, is not correct.
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Thus the prayer was made that the suit of the respondent-plaintiffs be dismissed and the counter claim be allowed and the respondentplaintiffs be directed to remove their possession from the land in dispute.
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After the issues were framed, evidence was adduced by the parties in which Mohd. Taufiq appeared as P.W.1 and Munnawar as P.W.2 on behalf of the respondent-plaintiffs and Raghuveer as D.W.1 and Ram Kumar as D.W.2 on behalf of the defendant-appellants. Certain documentary evidences were also filed by the parties. After considering the pleadings of the parties, evidence and material on record, the suit filed by the respondent-plaintiffs was dismissed and counter claim filed by the defendant-appellants was allowed by means of the judgment and decree dated 13.03.2012. A direction was also issued to the respondent-plaintiffs to remove their possession and hand over the possession to the defendant-appellants.
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Kalushah had two sons and two daughters namely Niyamat Ali,Nawab, Mariyam Begum and Jaituna. Mother of P.W.1 was Mariyam Begum. Jaituna was married in Sorai, District Sultanur. Liyakat had one daughter. Her name was Isratul, who is still alive. Nawab Ali have no children. Jaituana was wife of Liyakat. After death of Liyakat, Jaituna married to Mohar Ali. After marriage,Mohar Ali came to live with Jaituna. Sarid, Habib and Raseed were born to Mohar Ali and Jaituna. Therefore as per own admission of the plaintiff-respondents, their mother was not the only legal heir of Kalushah and one of his legal heir Isratul is still alive. As such the plaintiff-respondents have failed to prove that they are owner of the land in dispute on the basis of grounds given in the plaint. 12.The second point of determination has been decided by the First Appellate Court against the defendant-appellants on their counter claim, which is under challenge in this second appeal. The appellate court found that the defendant-appellants are claiming that the land in dispute has come to them from Ram Kumar, whereas the respondentplaintiffs have stated that there was no person namely Ram Kumar in the pedigree of the defendant-appellants. Neither there was any brother namely Ram Kumar of Ghisai the predecessor-in-interest of the defendant-appellants. The First Appellate Court also found that the defendant-appellants have not placed on record any documentary evidence to show that their predecessor-in-interest Ghisai had any brother namely Ram Kumar. It has also been found by the First Appellate Court that the maps made by the Advocate Commissioner indicates that the house of the respondent-plaintiffs is situated on the western side of the house of the defendant-appellants and the land in dispute is existing on the western side of the house of the respondentplaintiffs which has extended up to the north, therefore the land in dispute cannot be said to be appurtenant land of the house of the defendant-appellants. The First Appellate Court has also recorded a
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finding that the predecessor-in-interest of the respondent-plaintiffs were got settled on the western side of the house of the defendantappellants with his permission and permission of other villagers, whereas if they had settled on the land of the defendant-appellants then there was no question for seeking permission from other villagers.
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There is a way on the north side of land in dispute, which goes to the house of the defendant-appellants which is after house of the respondent-plaintiffs. It has also been stated by D.W.1 in his evidence that number of the land in dispute is 25, the length of which is 10 latha and width 8-10 latha. The house of Ram Kumar is on the northern side of it and on the southern side there is Kabristan and house of Khalil. In the eastern side of the land in dispute, the house of Taufiq and Majeed is there and chak road and Baag (Orchard) of Durga Prasad is on the western side. Sahan darwaja of Abdul Majeed and Taufeeq is on the western side. On the eastern side of house of Abdul Majeed and Taufeeq there is hata of Sabir Ali. Adjacent to the constructed house on the eastern side, there is kachha house of D.W.1 and his brother and there is two madha on the eastern side. Sahan darwaja is on the northern side and chappar is also on the northern side of the constructed house, which is from east to west in which his animals are kept. There is a mud wall in northern side of the said thatch which is east to west which turns from the western corner towards the south. Earlier there was a chhappar dalan in place of thatch which was made by the father. D.W. 2 Ram Kumar has stated in his evidence that on the eastern side of the ancestral residence of the defendant-appellants there is house and abadi of Shiv Shanker Pandey. Thus the First Appellate Court found that the evidence of defendant-appellants is in consonance with the site plan prepared by the Advocate Commissioner, according to which the house and sahan etc. of the defendant-appellants is at a distance from the land in dispute. Thus it is evident that the land in dispute is not adjacent or near but at a great distance from the house of the defendant-appellants, whereas they are claiming the rights on the land in dispute under Section 9 of the Act of 1950.
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Patra 45, in which the name of Isratual daughter of Niyamat Ali is recorded. Similarly in Paper No.62 Ga/30, the name of Niyamat Ali son of Kalushah is recorded. In Paper No.62 Ga 1/32, the name of Niyamat Ali , son of Kalushah resident of Aurangabad is recorded. The copy of NCR has been placed on record as 62 Ga/36, which is in regard to the dispute regarding Nali between the parties. Thus the First Appellate Court considering the aforesaid evidence came to the conclusion that the property came to Niyamat Ali after death of his father Kalushah but it has been stated by the respondent-plaintiffs that no sons and daughter of Kalsushah was surviving, which is contrary to the documentary evidence. Besides it after death of Niyamat Ali, name of his daughter Ishratul was recorded.
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the pedigree of the appellants and the defendant-appellants have failed to adduce any cogent evidence to show that Ram Kumar was in the pedigree and if he was, as to how he got the land in dispute, whereas the record indicates the name of Dudhu, however it does not indicate that it is in regard to the land in dispute.
“27. "Appurtenance', in relation to a dwelling, or to a school, college .... includes all land occupied therewith and used for the purpose thereof (Words and Phrases Legally Defined---Butterworths, 2nd edn).
"The word 'appurtenances' has a distinct and definite meaning ....Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned:Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoy- ment of the building is alone covered by the expression 'appurtenance'. If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that those lands are covered by the expression 'appurte- nances'. Indeed 'it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land. The word 'appurtenances' includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common ...but it does not include lands in addition to that granted'. (Words and Phrase, supra).
28. In short, the touchstone of 'appurtenance' is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the prin- cipal subject granted by s. 9, viz., buildings. This conclusion is inevitable, although the contrary argument may be ingenious. What the High Court has grant- ed, viz., 5 yards of surrounding space, is sound in law although based on guess-work in fact. The appeal fails and is dismissed but, in the circumstances, without costs. .”
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this Court. This second appeal has been filed on mis-conceived and baseless grounds, which is liable to be dismissed.
(Rajnish Kumar,J.)
Order Date :- 10.07.2023 Akanksha
Digitally signed by :- AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the lower appellate court ignored provisions of Section 9 of the U.P. Z.A. & L.R. Act when denying the appellant's claim of land ownership?
Whether the land in dispute qualifies as appurtenant land to the appellant's house under Section 9 of the U.P. Z.A. & L.R. Act?
Whether the trial and first appellate courts committed any illegality, error or perversity in recording of findings?
Colour shows how this judgement treated each authority
Maharaj Singh versus State of U.P. and othersReferred¶45
Maharaj Singh versus State of U.P. and others;(1976) 1 SCC 155 · Who else cites this
2 provisions across 2 enactments
Nathu Ram And Another
Mohd.Taufiq And Anr.
Rajnish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
