NARENDRA SINGH Vs. SARDAR SWARN SINGH

JUDGEMENT

(1.) HEARD learned Counsel for the parties and perused the judgment of the Courts below as well as the pleading of the parties and other documents present on the record. Both the learned Counsel for the parties agreed that this appeal may be decided finally at the stage of admission after framing the substantial question of law if involved. The second appeal has been instituted against the judgment and decree passed in Civil Appeal No. 16 of 2007 (Narendra Singh v. Sardar Swam Singh) dated 3. 12. 2007. By this judgment and decree the learned Appellate Court dismissed the appeal of the appellant/defendant. The respondent Sardar Swam Singh instituted O. S. No. 53 of 1993 in the Court of Civil Judge (S. D.) for permanent injunction regarding the land of plot No. 6522/2 measuring 0. 30 acre situated at Mohalla ravtyanapura, Tehsil, Pargana and district Lalitpur fully described at the foot of the plaint. And the Trial Court decreed the suit of the plaintiff/respondent. Being aggrieved from the judgment of the Appellate Court this second appeal has been instituted.

(2.) IT has been alleged in the plaint that the plaintiff/respondent who is exclusive owner in possession and recorded as Bhumidar Khata Katauni no. 1516 and plot No. 6522/2. This plot was purchased vide sale deed dated 15. 7. 1965. And the name of the plaintiff was also recorded in the revenue records. That in order to construct the house over this plot, permission was o btained from the District Magistrate, Lalitpur under the provision of U. P. Road side Control Act. The map was also sanctioned by the Nagarpalika. But due to the death of father of the plaintiff the house could not be constructed over this plot but a Tappara was constructed over this land and the defendant has got no right from the property in dispute and illegally interfering in the possession of plaintiff. The defendant appellant contested the suit, filed written statement and denied the plaint allegation specifically. It has further been alleged that the boundary of the property shown at the foot of the plaint is not the property of plot No. 6522/2 measuring 0. 3 acres. But this land is of the ownership and possession of the appellant. That a tappara is existing over this land besides lying other articles also. The plaintiff had never been in the possession of the property in dispute. That the property in dispute was not identifiable on the spot with the boundary as mentioned in the plaint. The plot No. 6522/2 has also not been shown in the map. That on the basis of this description no relief can be granted to the plaintiff. That one case was contested by the respondent-plaintiff in the Court of S. D. O. Lalitpur under section 41 of Land Revenue Act. The case was instituted by the respondent for demarcation of the land of plot no. 6522/2. But the S. D. O. dismissed the proceeding of section 41 of the Land revenue Act with the observation that defendant is in possession of the property. The Court had also held that no tarmimi map was prepared. The order was challenged in the Court of the Commissioner and the Commissioner Jhansi division Jhansi also dismissed the appeal No. 16/3 of 73-74 (Sardar Swaran singh v. Brij Behari Pahdey and others) on 16. 5. 1975. That the appellant contested the proceedings and as there was no sub division of plot, hence the proceedings of demarcation was dismissed. As no such plot was existing on the property hence the plaintiff was not entitled for relief. Further alleged that the property in dispute of the boundary shown in the W. S. was purchased in consideration of Rs. 1,000/- from Nirbhan Singh, Kamta Prasad and others. That the suit has been instituted wrongly. The evidence was produced by both the parties in the Trial Court. The Trial Court as well as Appellate Court considering that the respondent/plaintiff is recorded tenure holder hence entitled for the relief of permanent prohibitory injunction. Being aggrieved from the judgment of Appellate Court this second appeal has been instituted.

(3.) IT has been argued by learned Counsel for the appellant that the finding recorded by the Courts below to the effect that plaintiff/respondent is the owner in possession of the property described at the foot of the plaint and part of the plot No. 6522/2 is perverse and as there is no demarcation of plot no. 6522/2 in the khasra and khatauni and in the map also. Hence no relief could have been granted to the plaintiff. That the proceeding for demarcation under section 41 of U. P. Land Revenue Act had been dismissed against the plaintiff/respondent and thereafter the remedy available to the respondent was by filing a suit for declaration before the competent Revenue Court. And after the judgment in the proceeding under section 41 of the Land Revenue Act the Civil court was not justified in decreeing the suit merely on the basis of fictitious and forged revenue entries. And the Civil Court has got no jurisdiction to adjudicate the matter.