Disposed

Sayyed Uzair Husain and 6 Others v. Smt. Atiya Khatoon @ Shiba and 2 Others

Allahabad HC1 Jul 2025SAPL/117/2025

Case brief

AI extract

What is this about?

Second appeal against dismissal of a suit for injunction over Plot No. 2154. Appellants argued the courts below wrongly ignored testimony of their power of attorney holder and other witnesses. Appeal admitted on two substantial questions of law; interim order restraining parties from creating third-party rights or altering spot position.

What did the court decide?

Appeal admitted on framed substantial questions of law; interim order that parties shall not create third-party rights or alter spot position.

Sayyed Uzair Husain and 6 Others vs Smt. Atiya Khatoon… — Property and Title | Allahabad HC (2025)

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Court No. - 8

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Case :- SECOND APPEAL No. - 117 of 2025

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Appellant :- Sayyed Uzair Husain And 6 Others Respondent :- Smt. Atiya Khatoon @ Shiba And 2 Others Counsel for Appellant :- Adnan Ahmad Counsel for Respondent :- Manisha Trivedi

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Hon'ble Jaspreet Singh,J.

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1. Heard Sri Adnan Ahmad, learned counsel for the appellants and Ms. Manisha Trivedi, learned counsel for respondent Nos. 1 and 2. Earlier, she had filed her vakalatnama on behalf of respondent No.1. Today, she has filed her vakalatnama on behalf of respondent No. 2, which is taken on record.

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2. The instant second appeal has been filed against the judgment and decree dated 12.03.2025 passed by the learned Additional District Judge, Court No. 1, Unnao in Civil Appeal No. 89 of 2011, whereby the first appellate court rejected the appeal of the plaintiffs/appellants and affirmed the judgment and decree passed by the Civil Judge (Junior Division), Unnao in Civil Suit No. 62 of 1987. As a consequence, the suit preferred by the plaintiffs/appellants was dismissed.

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3. The submission of the learned counsel for the appellants is that the property in question belonged to the ancestors of the plaintiffs/appellants. They had permitted a bazar (market) to be held on certain plots; however, the dispute in the present appeal is confined to Plot No. 2154. It was alleged by the plaintiffs/appellants that the defendants were interfering with the disputed property by raising constructions thereon. In this backdrop, a suit for injunction came to be filed.

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4. It is further submitted that the respondents (the defendants before the trial court) contested the proceedings and denied the

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right of the plaintiffs. The matter went to trial, where the trial court would settle issues. It is urged that the plaintiffs had examined four witnesses. However, the trial court fell into error in rejecting the testimony of P.W.1- Fasad Askari, who was also the power of attorney holder of the plaintiffs, on the ground that since he was the power of attorney holder, he could not prove the facts, whereas the plaintiffs were alive and they were not examined as witnesses. It is submitted that thereafter, there was no consideration at all regarding the depositions of the plaintiffs witness Nos. 2, 3, and 4 respectively.

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5. It is urged that the power of attorney holder of the plaintiffs had categorically stated that he was the manager and had been managing the property since the time of the ancestors of the plaintiffs and he was the best witness. His testimony could not have been discarded merely because he was appearing as a power of attorney holder. It is also urged that, while not considering the testimony of P.Ws. 2, 3 and 4, the trial court had committed an error and the same has also been repeated by the first appellate court, which has resulted in sheer miscarriage of justice.

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6. Ms. Manisha Trivedi, learned counsel appearing for respondent Nos. 1 and 2 has refuted the aforesaid submissions and it has been urged that it was the duty of the plaintiffs to examine themselves in order to prove their case. Once the title was disputed, a simplicitor suit for injunction was not maintainable; rather, the plaintiffs/appellants ought to have claimed a relief of declaration, which has not been done. Thus, it cannot be said that any error has been committed by the two courts.

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7. The matter requires consideration.

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8. The instant second appeal is admitted on the following

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substantial questions of law :-

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(a) Whether the two courts were justified in discarding the evidence of P.W.1, who had clearly stated that he was the manager of the property since the time of the ancestors of the plaintiffs and was well versed with the facts in his personal capacity and despite the aforesaid averment, merely because he also happened to be the power of attorney holder of the plaintiffs, his testimony was ignored?

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(b) Whether the two courts were justified in failing to consider the evidence of P.Ws. 2, 3, and 4 and whether the suit could have been dismissed without taking into consideration the evidence of the plaintiffs?

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9. Since the respondents have already put in appearance and are duly represented by Ms. Trivedi, hence, no fresh notice is required. However, the trial court record be summoned.

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10. The plaintiffs/appellants shall take necessary steps within a week from today for summoning of trial court record.

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11. List this matter in the second week of September, 2025, along with the records of the trial court.

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12. As an interim measure, it is provided that the parties shall not create any third-party rights or alter the spot position, as it exists today.

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(Jaspreet Singh, J.)

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Order Date :- 14.7.2025 Shubhankar

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

Sayyed Uzair Husain and 6 Others v. Smt. Atiya Khatoon @ Shiba and 2 Others

Case brief

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Sayyed Uzair Husain and 6 Others v. Smt. Atiya Khatoon @ Shiba and 2 Others

Case brief

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