Vivek Agarwal and Another v. Ashish Kumar Maurya and Others

Allahabad HC24 Jul 2024SAPL/98/2024

Case brief

AI extract

What is this about?

Second appeals admitted on substantial questions of law concerning title to a staircase, open area and shops claimed by defendants-appellants under a sale-deed dated 07.04.2001 executed by Anjani Kumar, against which the original plaintiff Ram Dular claimed on two earlier sale-deeds. No decision reached; notice issued, record summoned, interim status-quo ordered.

What did the court decide?

Appeals admitted; notice issued; interim status-quo ordered with no alienation of disputed property permitted.

Vivek Agarwal and Another vs Ashish Kumar Maurya and… — Property and Title | Allahabad HC (2024)

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Court No. - 21

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Case :- SECOND APPEAL No. - 98 of 2024

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Appellant :- Vivek Agarwal And Another Respondent :- Ashish Kumar Maurya And Others Counsel for Appellant :- Rakesh Kumar Srivastava

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ALONGWITH

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Case :- SECOND APPEAL No. - 102 of 2024

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Appellant :- Vivek Agarwal And Another Respondent :- Ashish Kumar Maurya And Others Counsel for Appellant :- Rakesh Kumar Srivastava

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Hon'ble Jaspreet Singh,J.

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Heard Shri Rakesh Kumar Srivastava, learned counsel for the appellants.

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This is the defendants' second appeal assailing the judgment and decree passed by the District Appellate Court dated 23.02.2024 passed in Civil Appeal No.29/2017 by the First Additional District Judge, Sultanpur.

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The submission of the learned counsel for the appellants is that Shri Ram Dular, the original plaintiff had filed a suit seeking declaration and injunction against the present appellants and five other defendants. The claim of the plaintiff was based on two sale-deeds dated 26.02.2001 and 04.04.2001 executed by Anjani Kumar in favour of Shri Ram Dular.

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It is further urged that admittedly Anjani Kumar was the exclusive owner/landlord of the disputed property in question. The present appellants had also entered into a registered agreement to sell with Anjani Kumar dated 11.04.2000 for purchasing part of the property which was in their possession from where they were running their shop in the name and style of Garg Cycle Store. Later, in terms of the registered agreement to sell, the appellants after paying the remaining sale consideration got a sale-deed executed on 07.04.2001. In the said sale-deed as well as agreement to sell, there was clear depiction of the property being sold to the appellants and shown by red-colour lines in the site plan annexed and forming part of the said sale-deed.

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The dispute arose when the plaintiff Shri Ram Dular on the strength of the two sale-deeds claimed title over the entire

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property. This was resisted by the present appellants indicating that they had purchased the property from Anjani Kumar and except for that portion which was purchased by them, the original plaintiff may have some right in the property.

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Upon exchange of pleadings, the trial Court framed 12 issues, however, the controversy could be narrowed and as reflected by Issues No.2, 7 and 11. The parties led their evidence both oral and documentary and the trial Court by evaluating the same dismissed the suit of the plaintiff insofar as the shop Nos.1, 2, 3, 4 and 5 was concerned, but decreed the same insofar as the staircase and an open area on the northern side of the staircase, which was claimed by the appellants as their own.

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Being aggrieved against the judgment and decree passed by the trial Court dated 16.01.2012, two regular civil appeals under Section 96 CPC came to be filed. The present appellants preferred Regular Civil Appeal No.30/2017 whereby they assailed the judgment of the trial Court insofar as it related to decreeing the suit for the portion of the staircase as well as an open area on the northern side of the staircase which was part of the appellants' sale-deed.

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The defendant Ram Dular also preferred regular civil appeal which was registered as Regular Civil Appeal No.29/2017 wherein the plaintiff challenged the decree on the ground of dismissal of the suit insofar as the Shop No.1, 2, 3, 4, and 5 were concerned.

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Both the aforesaid civil appeals were heard by the District Appellate Court and by means of the judgment and decree dated 23.02.2024 dismissed the appeal preferred by the present appellants and allowed the appeal preferred by the plaintiff. It is in the aforesaid backdrop that the appellants have assailed the said judgment and decree by means of the instant second appeals whereby the first civil appeal of the appellants bearing No.30/2017 was dismissed and another Second Appeal No.98/2024 has been filed whereby it has assails the judgment of the District Appellate Court passed in Regular Civil Appeal No.29/2017. Thus, since the two appeals arise out of the common judgment in respect of the same parties, accordingly, both the second appeals are connected.

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The submission of the learned counsel for the appellants is that as per the sale-deed executed by Anjani Kumar in favour of the appellants, it clearly indicated the property sold to the present appellants. It also had requisite measurements and the map annexed with the sale-deed which is identical to the map which was annexed with the registered agreement to sell executed by

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Anjani Kumar in favour of the present appellants.

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It is thus urged that where the area of staircase along with an open area on the northern side which has been shown part of the property which has been sold out to the appellants including another room which was on the first floor coupled with the area wherein the appellants were running their shop under the name and style of Garg Cycle Store and was clearly delineated in the map annexed with the title deeds, two Courts have failed to appreciate the evidence led by the appellants establishing their case.

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It is further submitted that the stand taken by the originalplaintiff Ram Dular was apparently contrary to the measurements which are borne out from the sale-deeds.

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It is most inappropriate, that if the staircase is held to belong to the plaintiff, it would give rise to the complete contradiction, resulting in miscarriage of justice especially when it was the staircase from which the appellants could access their right to northern side of the room situated on the first floor. Once right of the plaintiff to have access to the first floor was upheld, it was not open for the Courts to have misconstrued and grant the right to staircase to the plaintiff as that is contradictory not only to the sale-deed but even to the evidence which was led by the parties.

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It is further urged that the findings recorded by the District Appellate Court regarding the shop that it belonged to the original-plaintiff is also not based on any evidence rather it is a clear case of misreading and misconstruction of the evidence available on record and arriving at a finding which is patently perverse.

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The matter requires consideration.

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Both the aforesaid second appeals are admitted on the following substantial questions of law:-

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(i) Whether the two Courts have committed an error in misreading the evidence and arriving at a conclusion that the staircase fell in the share of the plaintiff whereas it was not disputed between the parties that it was the only staircase from which the appellants had the access to reach to their room on the first floor which was clearly delineated in his sale-deed dated 07.04.2001?

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(ii) Whether the District Appellate Court fell in error in granting the decree of the Shop No.1 which was part of the property

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purchased by the appellants and admittedly had been their possession since the time of their father and running a shop in the name and style of Garg Cycle Store?

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(iii) Whether the two Courts have erred in misconstruing the evidence led by the parties and the findings returned on Issues No.2 7 and 11 are perverse?

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Let notice be issued to the respondents in both the aforesaid appeals returnable at an early date.

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Let the record of lower Court Record be summoned.

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Learned counsel for the appellants shall take steps for service on the respondents as well as summoning of the record of Lower Court within a week from today.

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Let both the second appeals be connected and be listed on 24.07.2024.

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As an interim protection, it is provided that the parties shall maintain status-quo as it exists today regarding property in dispute and no alienation is permitted.

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Order Date :- 16.5.2024 Rakesh/-

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

Vivek Agarwal and Another v. Ashish Kumar Maurya and Others

Case brief

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Vivek Agarwal and Another v. Ashish Kumar Maurya and Others

Case brief

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