Amir Alam Khan vs Lucknow Development Authority

Sunil Ambwani and Satish Chandra, JJ.—This First Appeal u/s 96 of the Code of Civil Procedure, 1908 arises out of Original Suit No. 475 of 1995, Amir Alam Khan and Anr. v. Lucknow Development Authority and Anr. Original Suit No. 475 of 1995 dismissed by the Addl. Civil Judge (SD) Court No. 22 Lucknow dated 29.8.2009. The hearing of the First Appeal has been expedited by the Supreme Court vide its order dated 09.11.2009.

The Plaintiffs Shri Amir Alam Khan and his mother Nahid Nigar Zaidi filed the suit against the Lucknow Development Authority through its Secretary and Narendra Nagar Housing Cooperative Society Ltd., the Defendants for permanent injunction, on the plaint allegations that the Plaintiff''s father late Maharaj Kumar Mohd. Mahmood Hasan Khan was the owner of properties at different places. He was owner and in possession of Khasra Nos. 368, 369, 381 and 398 Village Seikhapur Lucknow. A notice of acquisition of these plots was received by the Plaintiff No. 2 on 20.3.1978. The dispute relates to land in Khasra No. 380 area 3 bigha 18 biswa in Village Seikhpur bounded towards east by road, towards west by ''Sarak'' and thereafter House Nos. 1/41, B1/31 and B1/38 Kapurthala Bag, Aliganj Lucknow, north-road thereafter office of District Industries Centre and house No. B-4, B-7, B-8, B-9, B-10, B-11 Kapurthala Bag Ali Ganj Lucknow and towards south by Kapurthala road.

It was averred in the plaint that the Plaintiff''s father had executed his last Will on 2.3.1990 vesting all his immovable property including property in village Seikhapura in favour of the Plaintiff. After the Plaintiff''s father death on 11.5.1993 he is the only legal heir of his father and is in possession of the property. On 11.9.1995 the employees of the Lucknow Development Authority and the representatives of Narendra Nagar Housing Cooperative Society came to the property and tried to dispossess the Plaintiff. They used abusive language. They claimed that the property has been acquired for Lucknow Development Authority and has been transferred to Narendra Nagar Housing Cooperative Society.

The Plaintiff''s further stated that the notice for acquisition of Khasra Nos. 368 to 389, 381 to 398 Village Seikhapur Lucknow owned by his father was given to his mother Defendant No. 2 on 20.3.1978 but the compensation for the plots has not been given to her so far. The Defendants do not have any right to interfere in the peaceful possession and use of the property in dispute. He will suffer irreparable loss, if he is dispossessed. The cause of action arose to the Plaintiff on 11.9.1995, when the Defendants wanted to dispossess him.

The Lucknow Development Authority-Defendant No. 1 filed a written statement alleging that the disputed property has been acquired for the Aliganj-City and Road Extension Scheme and is vested in the State of U.P. The Special Land Acquisition Officer has given possession of the property to the Defendant. The Plaintiff is neither the owner nor is in possession of the property. Khasra No. 380 Village Seikhpur was included in the notification dated 17.3.1962, issued u/s 357 of Nagar Mahapalika Adhiniyam and thereafter by notification dated 26.4.1969 u/s 363 of the Adhiniyam. The provisions of Section 17 of the Land Acquisition Act were made applicable to the land acquisition on 31.12.1979 and that an award was declared by the Special Land Acquisition Officer on 31.12.1989. The possession of Khasra No. 380 was given to the Lucknow Development Authority on 19.4.1976 and on 31.1.1989. The suit has been filed by concealing relevant facts and suffers from defects of misjoinder and nonjoinder of the properties. The Special Land Acquisition Officer was a necessary party to the suit. The suit is also barred by limitation and is liable to be dismissed. It was further stated that the land is vested in the State Government and that possession has been delivered to the Lucknow Development Authority. The Plaintiff has not given notice u/s 52 of the Act.

The Narendra Nagar Housing Cooperative Society-Defendant No. 2 denied the plaint allegations and stated in additional pleas that the property in dispute was acquired and is vested in the State Government. The possession was given by the Special Land Acquisition Officer to the Lucknow Development Authority. The Special Land Acquisition Officer is necessary party and has not been impleaded in the suit. The area of the disputed land shown within the boundaries given in the plaint was allotted by the Lucknow Development Authority to various persons prior to its allotment to Defendant No. 2. There are houses of various allottees situated over the land. These allottees are detailed as "B-1 plot No. 36 Smt. Vijai Laxmi, plot No. 35 Pawan Kumar, plot No. 34 Anupam Dheer, plot No. 33 Nishal Chemicals, Plot No. 32 Ajit Kumar, Plot No. 31 Smt. Usha Agrawal, plot No. 30 Smt. Madhulika Singh, plot No. 29 Radhey Shyam, plot No. 28 Smt. Uma Pandey, plot No. 27 Raja Ram, B- plot No. 15 Hari Prasad Agrawal/Raj Kamal, plot No. 14 Smt. Kamal Kishan Shukla, plot No. 13 Smt. Chandrawati Singh, plot No. 12 M.M. Manoja, plot No. 11 Dharma Mehta and Smt. Beema Mehta, D-1 Smt. Nanhi Devi, plot No. 2 Jwahan Lal, plot No. 3 Vishwaram Singh, plot No. 4 Mohd. Ahmad, plot No. 5 Savitrri Devi, plot No. 6 Ashok Kumar Nigam. These persons are necessary parties. They have not been impleaded in the suit.

The Defendant No. 2, co-operative society further averred that according to lay out plan of the Lucknow Development Authority Defendant No. 2 was allotted developed land in different plots, of which the actual possession was given to it. The Defendant No. 2 is in actual physical possession of the land. The Plaintiff is not in possession of any portion of the land. The matter relates to acquisition of land and thus the Special Land Acquisition Officer, Nagar Palika and Lucknow Development Authority are necessary parties. The suit is also barred under the Specific Relief Act. The Defendant No. 2 alleged that notice u/s 80 was not given to the State of U.P. nor a notice u/s 52 of the Act was given. In respect of Khasra Nos. 368 and 402 Village Seikhpur acquired by the State Government one Smt. Kalawati had filed claim for compensation, which was referred u/s 30 under the Land Acquisition Act. The Plaintiff is not the owner of the land. The suit is not maintainable and is liable to be dismissed and is also barred by Section 331 of the UPZA & LR Act.

The plaint was amended by order dated 2.8.2008. In the additional written statement filed after the plaint was amended the Lucknow Development Authority stated that late Maharaj Kumar Mahmood Hasan Khan had prepared a Char Bag Housing Scheme in which the work to plot the land was given to Mohan Co. Pvt. Ltd. and that the plots were sold through the company. The plot Nos. 1, 2, 3 and 4 under the said scheme were transferred to Dr. Anand Singh son of Ram Singh, who had taken loan from Allahabad Bank, Dhanbag on Khasra No. 380. The suit filed by the bank for recovery was decreed in favour of the bank. In the execution proceedings a summon was issued to the. Lucknow Development Authority. The Plaintiff''s father had executed several sale deeds in respect of Khasra No. 380, whereas he was not the owner of the plot. In Award No. 265 of 1979 these purchasers of the land in Khasra No. 380 had filed their claims before the Land Acquisition Officer. These claims were referred u/s 30 in Case No. 1 of 1985 on the ground that title was disputed. For the remaining land, in Award No. 179 the compensation was determined on 11.4.1977. Smt. Iqbal Jahan Begum, the mother of the Plaintiff holding power of attorney of Maharaj Kumar Mahmood Hasan Khan had accepted the compensation.

In the written statement the execution of the Will was denied. It was stated that in Writ Petition No. 42-L/A/2000 the other heirs of Maharaj Kumar Mahmood Hasan Khan had filed their applications and in Writ Petition No. 43-L/A/2000 the High Court did not hold the Plaintiff''s father to be the sole owner of the land. The Plaintiff is neither the owner nor in possession of the property.

In the replication, the Plaintiff stated that Khasra No. 380 area 3 bigha 18 biswa was not acquired and that he is owner and in possession of the property through Will dated 2.3.1990. His father never transferred the land in the khasra and that the transaction of loan has no relevance to the case. The Plaintiff has no knowledge of these facts. The documents of transfer executed by the Defendants are void documents and that reference to Nagar Maha Palika Tribunal is without any jurisdiction as plot was never acquired. The Writ Petition No. 42/L/2000 was filed by the step brother of the Plaintiff in which the High Court had directed the Special Land Acquisition Officer to award compensation to the legal heirs of Late Maharaj Kumar Mahmood Hasan Khan in accordance with law. In the said order the Will was not declared as void nor the Plaintiff''s rights were extinguished. The will is a legal document creating title in favour of the Plaintiff.

In the additional written statement filed by Defendant No. 2 the boundaries of the property were disputed. It was stated that Kapurthala Road is not in the north but towards south of the plot. The Plaintiff is not in possession of the property. The Bandobasti 1332 F. shows that Khasra No. 380 is situate towards Hanuman Mandir at Kursi Road with an area of 3 bigha 18 biswa (106000 sq. ft.). The property has been wrongly described in the plaint. In the additional written statement the Defendant No. 2 stated that entire area of Khasra No. 380 has been acquired. The Plaintiff''s father had sold parcels of the land to different persons for its development by Vikas Mohan and Company. The Plaintiff''s father was not the owner of the property. The purchaser of the land had claimed compensation in award No. 265 dated 31.12.1989. The Plaintiff''s father had sold the property some times in 1958. In Award No. 179 dated 11.4.1977 the Plaintiff''s mother had taken compensation as power of attorney holder of her husband. The Will is totally illusory and false and that the Plaintiff has to prove the Will. It was then stated that Khasra No. 380 was sold by Plaintiff''s father in his lifetime, and that remaining land has been acquired by the State for which his wife has accepted the compensation.

In the replication to the additional written statement the Plaintiff stated that plot No. 380 has not been acquired nor his father or any member of his family had sold the plot or parcels to any persons. The documents of alleged sale are fraudulent documents. The Plaintiff is not bound by these documents.

The parties led documentary and oral evidence to prove their case. The Plaintiff filed land records, notice of the Land Acquisition Officer, a question answer from the office of the Land Acquisition Officer, and photocopy of the will. He also filed khataunies of 1406F., a certified copy of the will dated 2.3.1990, Khatauni of 1365F., Khatauni of 1370 to 1372F., Khatauni of 1374 to 1378F., a question answer in suit No. 1 of 1985, the copy of the award and its justification and the photocopy of the acquisition plan. The original question answer form dated 1.12.1996 was also filed on record. The Plaintiff examined himself as PW-1 and Shri Girish Kumar Pandey as PW-2.

The Lucknow Development Authority-Defendant No. 1 filed the letter of the District Officer, Land Acquisition, letter of the Addl. District Magistrate, Land Acquisition Trust, to LDA in original. The Financial Hand Book (FHB) Volume No. 71/Schedule 9 Form CC, certified by the Addl. District Magistrate Land Acquisition. The award No. 179 by the Addl. District Magistrate, Land Acquisition, gazette dated 26.4.1996, certificate of gazette dated 19.4.1976 and certified photocopy of the possession letter dated 31.1.1979, notification dated 17.3.1962, and the award dated 31.12.1979.

The Defendant No. 2 filed notice No. 473 under Rule 97 dated 29.11.1997, the judgment in Misc. Civil Appeal No. 118 of 1998, the judgment in Misc. Case No. 41 of 1981, the notification dated 13.4.1970 certified by LDA, the question answer form by LDA, copy of the gazette and notification dated 18.4.1970 by which it was published, the certified copy of the gazette dated 26.4.1969.

The Defendant also filed 4 sale deeds dated 25.6.1959, certified copy dated 13.3.1958, photocopy of the sale deed dated 31.1.1959, photocopy of the sale deed dated 4.3.1958, photocopy of the sale deed dated 2.9.1959, photocopy of the objections by Lucknow Development Authority under DRC No. 14 of 2003, photocopy of the superimposed plan dated 15.6.2005. The Defendant No. 1 also filed the copy of the Writ Petition No. 137 of 1974, question answer form in suit No. 1 of 1985 Misc. Case LKS and the judgment of the High Court in Writ No. 137 of 1974. The Defendant No. 2 also filed khataunies, copies of the sale deeds and the plan of the plot. The Defendant No. 2 also filed certified copy of the acquisition plan and the verified copy of paper No. Ga 331/7 for its restoration on record. The Defendant examined Shri Hari Prasad Gupta as DW-1 and Shri Chandra Shekhar Gupta as DW-2.

The trial Court framed 9 issues. Its findings on the issues are given as follows:-

Issue No. 1. Whether the Plaintiff is owner and in possession of Khasra No. 380?

Issue No. 2. Whether the land was acquired by the State Government?

Issue No. 9. Whether the land in Khata No. 380 has been acquired? Findings on issue Nos. 1, 2 and 9

The trial Court after discussing the documentary and oral evidence found that the Plaintiff is recorded as tenure holder of the disputed land by order of the Naib Tehsildar, Chinhat dated 3.10.1993 on the basis of will dated 2.3.1990. The entry was not challenged by the Defendants. The land in Khasra No. 380 Ali Ganj was thereafter entered as Aliganj Road and City Extension Scheme. The Khasra No. 380 has been divided into several small plots. The land is used at present as Ali Ganj Road and City Extension Scheme. The contention of the Plaintiff that mere is no mention of the year in which entries were changed and the orders of the Court by which such entries were made, do not give any benefit to him as he had not challenged these entries. The Plaintiff has not established the identity of the land by giving its correct boundaries. The oral evidence does not prove either the boundaries or the possession of the Plaintiff over the land, as the witness has no knowledge about the situation of roads and the electric poles on the land. They also could not establish as to who had applied for electric connection, and the manner in which the Plaintiff is in possession. They also could not prove whether large area of the plot is being used for agriculture. The trial Court held that the Plaintiff has not been able to prove that Khasra No. 380 was not part of acquisition plan. The question-ire dated 23.6.1992, the notice in respect of acquistion, the award in respect of Khasra No. 380 area 2 bigha 2 biswa 9 biswansis, and other documents namely relating to Suit No. 1 of 1985 in which mere is no mention of Plot No. 380, are contradictory and only create a doubt over the inclusion of Khasra No. 380 in the acquisition plan. The Defendants have on the other hand proved by the notifications and the awards dated 11.4.1977 and 31.12.1989, that in respect of Khasra No. 380 the award was given twice and that the possession was also taken on two different dates namely on 19.4.1971 and thereafter on 31.12.1989 and thus the answer to the question given by the Land Acquisition Officer in respect of Khasra No. 380 is erroneous and cannot be accepted. The first award dated 11.4.1977 in respect of Khasra No. 380, area 1 bigha 7 biswa 10 biswansis 18 kachwansis was given in favour of the Plaintiff''s father. In award dated 31.12.1979 the compensation was given in respect of 2 bigha 10 biswa 9 biswansis and 2 kachwansis. In respect of Khasra No. 380 it is stated by the Special Land Acquisition Officer in award dated 31.12.1979, that various plot holders have claimed compensation. Shri S.S. Dixit has also claimed for compensation in respect of 2 bigha 10 biswa 9 biswansis and 2 kachwansis on 17.8.1972, and that since there is a dispute in respect of ownership, the matter was referred u/s 30 of the Land Acquisition Act to the Presiding Officer, Nagar Maha Palika Tribunal.

The trial Court has also referred to award No. 179 dated 11.4.1977, in which in respect of Khasra No. 380 area 1 bigha 7 biswa 10 biswansis and 18 kachwansis it was observed that the interested persons have claimed that 68/680 sq. ft. land in Khasra No. 380 has been sold to different persons and for remaining 37487 sq. ft. is in possession of the applicant. He claimed the compensation at the rate of Rs. 1 per sq. ft. In the same award Smt. Iqbal Jahan Begum, holding power of attorney of Maharaj Kumar Mohd. Mahmood Hasan was given the compensation for 1 bigha 7 biswa 10 biswansis and 18 kachwansis at Rs. 26,243.45, and that the amount was paid to her. The last page of the award bears the signatures of Smt. Iqbal Jahan Begum. She has denied the knowledge of the award and the receipt of the money but she has not challenged award in any Court. The Plaintiff has not denied that the award bears signature of his mother but has stated that since the land was not acquired, the award has no significance.

The trial Court found that the taking over of the possession without notice is only an irregularity and will not affect the acquisition of the land. It went further in holding that the acquired land is shown by red colour in the plan in which there is a cross on Khasra No. 380. The Plaintiff was shown this map paper No. Ga 70, several times by the Counsel for the Defendants and was asked whether it was same map by which the land in the village was acquired by notification. The paper No. Ga 70 was thus fully proved on record. During the arguments in the trial Court it was stated by the Defendants that some interpolation has been made in paper No. Ga 70 and thereafter certified copies of the plan was filed as paper No. Ga 381/1, and the two pages of award No. 265 of 1979. It was alleged by the Defendant that paper No. Ga 70 was removed from the record and was again inserted at the stage of Miscellaneous Appeal, and that if the cross marks were there on the plots, which were not acquired from the very beginning, the Plaintiff should have taken the plea in the appeal. The Appellate Court has not drawn any such inference from paper No. Ga-70. The trial Court thereafter examined the documents and recorded the findings that names of villages and the scale map is not entered in paper No. Ga-70. There is overwriting on the signatures and the will is also erroneous. A close examination of paper No. Ga-70 shows that area entered as village Fatehpur in the certified copy is shown by oblique lines, whereas in the certified copy of the plan there is no marking of either cross marks or oblique lines. In paper No. Ga-70 the village Ahibaranpur Khasra No. 386, 387 is also shown by oblique lines and that plot No. 140,141,142 and 1520 in Village Fatehpur is also shown by oblique lines, whereas there is no mention of oblique lines in the legend in paper No. Ga-70. The trial Court did not rely upon paper No. Ga-70 and found the document to be doubtful. After disagreeing with this document the trial Court relied upon a plan produced by the Defendant paper No. 381/1 as a public document, which was more than 20 year old and was produced from proper custody and concluded that land in the plan had vested in LDA u/s 59 of the U.P. Urban Planning and Development Act for which the awards were made for compensation.

The trial Court further gave reasons for not believing paper No. Ga-70 and in rejecting the contention that the plots, which were not acquired were shown by cross marks, on the ground that whereas the plan shows that the entire land was acquired under the rules, the temples, masjid, kabristan and tube wells are not acquired. The trial Court held that the burden of proving the receipt of compensation vide paper No. Ga-110 bearing signature of Smt. Iqbal Jahan Begum was on the Defendant. The Plaintiff denied the signatures of her mother and requested for examining her signatures through experts and found that Defendant No. 1 had taken upon itself the burden of proving the document in statement given in Writ Petition No. 1393 of 2009, filed against orders refusing to send the document to the expert. Instead of disproving the signatures the counsels appearing for both the Defendants made a statement that it was not necessary to prove as to who had received the compensation, if the land was acquired and had vested in the State. The trial Court accepted the submissions and found that in view of the notifications in which the boundaries of the area acquired were given including khasra No. 380, the proof of the documents of possession and compensation is not relevant so long there was no evidence to show that these plots were released from acquisition and that even otherwise awards of the year 1977 and 1979 referred to plot No. 380.

The trial Court thereafter discussed the evidence of allotment of plots by LDA in favour of the Narendra Nagar Cooperative Housing Society. The lease deeds (paper No. 258/2 to 258/5), production plan and the applications in respect of claimants before the Nagar Mahapalika in proceedings u/s 18 of the Land Acquisition Act in Case No. 41 of 1998 dated 22.9.1983 in Khasra No. 380 and found that these documents prove that the Plaintiff is not the owner and in possession of the property in dispute.

The trial Court thus recorded findings that the Plaintiff has failed to prove that he is the owner and in possession of the property, and that the property has not been acquired by the State.

Issue No. 5

Whether the suit is undervalued and That Court fees paid is insufficient? Finding

The trial Court found that the Defendants did not press the issue. In the amendment application the Plaintiff prayed to value the land at Rs. 175 per sq. ft and accordingly valued the suit for Rs. 1,85,50,325/-, and has paid the maximum Court fees of Rs. 500/- for the relief for permanent injunction. The issue was decided in favour of the Plaintiff.

Issue No. 3

Whether the suit is defective on the ground of nonjoinder of the parties?

Finding

The trial Court found that the land was claimed to be ancestral property acquired through Will It was alleged by the Defendant that the suit property was acquired by the State Government and was transferred to LDA. The LDA was impleaded as party and thus nonimpleadment of the State Government and Special Land Acquisition officer was not fatal to the suit. They were formal parties and that the suit could not be dismissed in their absence.

Issue No. 8

Whether the Plaintiff has right to file the suit in respect of Khasra Plot No. 380 Seikhpura, which was sold away by his father? -

Finding

The trial Court observed that the burden of proving the issue is on the Defendant The Defendants have filed the true copies of the sale deed paper No. C 336/3 to C 336/16 and paper No. C 331/14 to C 331/34. The copies of the sale deeds executed by the Plaintiff''s father through Mohan Company shows that the Plaintiff''s father had sold plot No. 380 in favour of different persons by registered sale deeds. These sale deeds have not been challenged and thus they cannot be treated to be illegal and fraudulent. The Plaintiff did not deny the signatures of his father on these sale deeds. The purchasers in these sale deeds were not impleaded as parties to the suit. These sale deeds executed in 1958 and 1959 relate to Khasra No. 380 by which the plots were sold to R.P. Gupta, N.N. Chopra, Jai Datt, Atma Ram Sharma, R.P. Singh, J.N. Singh and Shri Ram Agrawal. The trial Court held that original sale deeds are retained by the purchasers and thus the certified copies of the sale deeds are admissible by way of secondary evidence of sale. These documents are more than 20 years old. The Plaintiff has not stated as to how these documents were fraudulent and could be ignored by the Court. The trial Court thus recorded findings that some part of plot No. 380 was sold by the Plaintiff''s father in his life time and thus the Plaintiff did not have right to file suit in respect of entire land.

In respect of same issue regarding right of the Plaintiff to file suit in respect of land, which was sold away by his father the trial Court held that since it was proved that the Plaintiff is neither owner nor in possession of Khasra No. 380, there was no cause of action available to the Plaintiff to file the suit.

Issue No. 7

The relief to which the Plaintiff is entitled?

Finding

The trial Court held that since issue No. 1 has been decided against the Plaintiff and it has been found that the Plaintiff is neither owner nor in possession of the disputed Khasra No. 380, and further since it has been found that proceedings of acquisition of land of Khasra No. 380 in village Seikhpur were concluded and in respect of which the notification and award has been declared, the land is an acquired land on which the Plaintiff has no rights. The Plaintiff was thus not entitled to any relief in the suit and that suit was liable to be dismissed with costs.

We have heard Shri V.K.S. Choudhary, Sr. Advocate assisted by Shri M.A. Khan and Shri Kunal Ravi Singh for the Appellant. Shri B.C. Agrawal appears for Lucknow Development Authority. Shri Prasant Chandra, Sr. Advocate assisted by Shri Jaspreet Singh appear on behalf of Defendant Respondent No. 2.

Shri V.K.S. Chaudhary submits that the only question that arise in appeal is whether plot No. 380 of Village Seikhpur, included in the Lucknow Corporation in the year 1958-59 was acquired under the Ali Ganj Street and City Extension Yojana. The scheme was framed under the U.P. Municipal Corporation Act, 1959 (previously called U.P. Nagar Maha Palika Adhiniyam 1959). The scheme was framed for an area surrounded by red line in map C-70, which was attached to the scheme. The notice was given u/s 357 of the Act as information of the place and the area of the scheme, which also gives a statement of land, which is proposed to be acquired vide Section 357 (I) Clause (c). u/s 376 read with Schedule 2 the Land Acquisition Act is applicable to the proposed acquisition and that the notice u/s 357 (I) takes the place of notification u/s 4 of the Land Acquisition Act. The recorded persons have to be notified that the Corporation proposed to acquire the land for carrying out improvements and that if they have any objections, to file the objections within 60 days. It is only thereafter the notification u/s 363 can be made to operate as declaration u/s 6 of the Land Acquisition Act In case of any alteration the entire procedure has to be followed again and a fresh sanction of the State Government is required. He submits that original scheme was transferred to LDA for execution, and with it the ammonia copies of the plan were sent to various authorities. These copies could not be changed. The ammonia copy filed by LDA carried the legend, which shows that the plots not sought to be acquired were marked with crosses. The plot No. 380 of Village Seikhpur is crossed, clearly indicating that it was not sought to be acquired.

Shri Chowdhary submits that the Plaintiff''s father was bhumidhar on plot No. 380, which was not acquired. He was not given mandatory notice of starting acquisition proceedings. The notice was given and acquisition started for plot Nos. 368 to 389, 381 to 398 and for plot Nos. 400 to 402. The plot No. 380 in between was not mentioned and which made it decisive that plot No. 380 was never acquired. The conclusion is further strengthened by the document namely the question with answer issued by Special Land Acquisition Officer himself dated 23.6.1992 that the plot No. 380 was not acquired

Shri Chowdhary submits that in order to sell parts of the plots to its members the Bhumidhars was required to form a cooperative society. The plan did not fructify and thus there was no question of sanction as the Corporation itself framed the scheme for development. The cooperative society was not registered and thus the LDA or the Society-the Defendants have no concern with it. There was no question of apportionment of the award and thus Section 30 did not apply and the reference itself is void. No steps have been taken in last 20 years. The reference is still lying undated. He would submit that after the decision of the Nagar Mahapalika Tribunal dated 5.6.2000 that Plot No. 380 was not acquired, no question arise of any reference regarding the apportionment of compensation. The questionire filed by LDA that an application for recall of the order dated 5.6.2000 by LDA is pending and no date is fixed, is of no consequence as LDA was not a party in the reference relating to apportionment between third parties.

Shri Chowdhary submits that acquisition is initiated by notice u/s 358 (I) and is in accordance with map with the notification u/s 357. None of these documents were produced to prove the acquisition of plot No. 380. The map of the scheme, the basis of the acquisition filed by LDA itself is conclusive of plot No. 380 (crossed out) was not acquired.

It is stated by Shri Chowdhary that LDA had filed a spurious award dated 11.4.1977, of plot No. 380 area Bighas 1-7-10-18. It is nonexistent. There is no file relating to this award and there was no notice to the Plaintiff''s father regarding it. A voucher for payment of compensation purports to bear the signature of Iqbal Jahan Begum, the mother of Plaintiff No. 2 in ''Urdu''. The signature is the same as on the alleged award and is traced forgery of each other. The Plaintiff denied these documents and requested for reference to hand writing experts for their comparison, with her specimen signatures in the bank. The Defendants objected. The applications were dismissed by the trial Court. In Writ Petition No. 1393 (MB) of 2009 the High Court on the statement of the Counsel for the LDA made in order that the signatures be not compared in forgery detected undertook to prove them. The LDA thereafter did not produce any evidence and thus these documents cannot be read in evidence. The Plaintiff''s mother-Defendant No. 2 denied in the plaint that any such proceedings had taken place. Further the possession letter dated 31.1.1979 says that the possession of only one bigha of plot No. 380 was delivered, and not the entire area mentioned in the award.

Shri Chowdhary submits that u/s 65(e) of the Evidence Act the public documents certified to have been compared and to be true copies by the keeper thereof, alone are admissible in evidence. No other secondary evidence is admissible, when the original is a public document within the meaning of Section 74. Section 78 of the Evidence Act applies to government records, which includes Acts, orders and notifications in the nature of statutes itself. The sale deeds, whose copies were obtained from Sub Registrar are private documents. They relate to an area of 22500 sq. ft. instead of total area of plot No. 380 namely 106000 sq. ft. These documents were not admissible in evidence and did not relate to the entire plot. Moreover the vendors never came in possession nor any mutation was made in the revenue records. Nobody was examined to prove these documents. They are thus inadmissible in evidence.

It is submitted that LDA has made wild allegations in the affidavits. After the arguments of the Plaintiff and LDA were over in the trial Court and it became apparent that Defendants had no case, a plan was hatched, and the story was introduced to challenge the map on which the acquisition was based. The society, instead of LDA after having succeeded in managing to get the Plaintiff''s application for hand writing experts rejected, prevailed upon to somehow insert a forged map of the acquisition. For this purpose the society filed an application on 28.5.2009, that one of the papers namely the acquisition plan of Ali Ganj Scheme was missing in the documents. The Court thereafter closed for summer vacations. The Plaintiff''s Counsel thereafter discovered paper No. C-331/7 on record, in his rejoinder arguments and at once brought to the notice of the Court. By that time the society had filed false application on the administrative side before the District Judge and secured an exparte order for reconstruction of the document. The trial Court put the other false document filed on 2.7.2009 as reconstructed paper No. C-385/2 on record. There was no index with paper No. C-331/1 but the alleged reconstruction contained a hand made index to show that only oblique lines and not cross marks shown the plots, which were not acquired. Previously filed map paper No. C-331/7 did not contain any mark, whether oblique or cross. The forgery was thus apparent and that none of these maps related to acquisition. After the application of the society the LDA itself filed application for permission to file the map of acquisition as the original filed by it as map on which the acquisition was based was being misinterpreted and misconstrued. The prayer was that the documents filed with separate list namely the map of the scheme in Urdu numerals and its translated map in English numerals be taken on record. The map in Urdu numerals is infact a settlement map on which a false index and oblique lines and not cross marks have been put. The original map of the scheme contained Indian numerals in their international form. Whereas map C-70 was filed by LDA as the map of the scheme on which the acquisition was based.

It is submitted that on reopening of the Court a counter-affidavit was filed on 2.7.2009. The trial Court on 7.7.2009 directed the original acquisition plan to be filed, which was never filed and copy of the map, which is not certified copy but merely an attested copy by Executive Engineer was filed, which was inadmissible in evidence. The Court also permitted the Plaintiff to file the document in rebuttal. The Plaintiff on 11.7.2009 filed a certified copy of the map on which the acquisition and the award was based. It was the same map, which was initially filed by LDA as C-70. The certified copy with cross marks on plot No. 380 was conclusive. Shri Chowdhary submits that LDA again changed its stand. It relies on mistaken observation of the trial Court that the map on which acquisition was based was not filed, which is contradicted by the Appellate Court judgment dated 17.7.2004, that map C-70 was on record and was perused by the Appellate Court. Both the Courts had granted injunction on the ground that plot No. 380 was not acquired. A speculative theory was sought to be built without any foundation that map C-70 might have been taken away and replaced after manipulation and thereafter further prayer was made to take on record copies of the two writ petitions filed by third parties relating to other parts. The Plaintiff was not parties to these proceedings. These documents were also irrelevant and inadmissible. All the parties treated paper C-70 as the map on which acquisition of the scheme was based for 13 years till the arguments were over. It was filed by LDA. There was no other acquisition or the scheme and thus it was a conclusive proof that plot No. 380 of village Seikhpur was not acquired.

In the last limb of his argument Shri Chowdhary submits that record speaks of the possession of the Plaintiff. The Khatauni entries on the record show continuous possession. He relies upon khatauni of 1356F, 1359F, 1362F, 1365F, 1370 to 1372F (when the land for the scheme was acquired), khatauni of 1401 to 1406F (when the suit was filed) and the khatauni of 1406F (when the name of first Plaintiff was mutated on the basis of the Will). He submits that trial Court has wrongly relied upon the oldest khatauni 1413-1418F (2005-2011 AD), which is spurious as it does not contain the year and name of the authority making the entries. The Plaintiff was never given any notice of change of entries made in violation of principles of natural justice and fair play. The khatauni does not show as to when the entry and from which year it was made as Column No. 30 blank and that plot No. 380 was subdivided into 13 plots. It is stated by him that the land is lying parti. It was only on 11.9.1995 that some employees of LDA with agents of society came and tried to take forcible possession, which was resisted. LDA also filed copies of sale deed, which are private documents, which are inadmissible in evidence without any proof.

The Counsel for LDA submitted that notifications and the map conclusively proved on record that plot No. 380 was acquired and the possession was given to LDA. The awards by the Special Land Acquisition Officer and the reference, which is still pending and was illegally dismissed for which an application for recall has been given, also conclusively proved that the entire plot No. 380 was acquired. The possession of the plot was taken and part of award of the land has been received by the Plaintiff''s mother. Once the land is acquired and compensation determined, the land vests in the State free from all encumbrances. The Counsel for LDA submits that original map was misplaced from record and after the District Judge allowed the record to be reconstructed, a certified copy of the plan was filed which clearly shows that there was no cross mark as alleged, not acquiring plot No. 380. There are several plot No. 380s of different villages in the plan. The Plaintiff has no right after the plot was acquired and is not in possession of it, his father had sold away the land to various persons through a cooperative society. The Plaintiff could not prove his possession over the land in dispute and is not entitled to permanent injunction. In any case a person, who is not in possession, is not entitled to permanent injunction. He would submit that since it was proved that plot No. 380 was acquired, and that awards were prepared for providing compensation including plot No. 380, the original plan was misplaced. The record was thereafter reconstructed and that certified copy of the plan was placed on record which did not show the plot No. 380 was not acquired or excluded. He submits that the first appeal is liable to be dismissed.

Shri Prashant Chandra appearing for Defendant No. 2 submits that a suit for injunction, by Plaintiff, who is not in possession is not maintainable. The Plaintiff could not establish his possession by any evidence oral or documentary. The Plaintiff''s name was not entered in the relevant khataunies and that the witness of Defendant No. 2 positively stated in his examination in chief in paragraphs 2, 3 and 16 that the Defendant No. 2 society is in exclusive possession of the property since 16.11.1984. The witness was not cross examined on the question of possession. He has relied upon judgment of the Supreme Court in Ramji Rai and Anr. v. Jagdish Mallah (dead) through L Rs. ,1 in which the Supreme Court held that if the Plaintiffs failed to prove that they are in possession, the suit for permanent injunction is liable to be dismissed on that ground alone. The declaration that the Plaintiffs are not owners in such case is unwarranted. The mere fact that question of title may have to be gone into in deciding whether an injunction can be given or not is not any justification to hold that the suit is for declaration of title and for injunction. There can be a suit only for an injunction and therefore when the Appellant failed to show that they are in possession, it was not necessary to decide that they were not the owners.

Shri Prashant Chandra submits that Plaintiff has failed to establish his case and is relying upon the weakness of defence case. It is not permissible in civil suit, vide Ram Co. Industries Workers Housing Building Cooperative Society v. Laksha Meesha M and Anr. 2 He states that certified copies of all the documents were placed on record after obtaining them from public office, such as office of the Registrar. The sale deeds executed by the purchaser in interest of the Appellants relate to the year 1958 to 1959. The certified copies of the awards were obtained from the reference filed bearing Misc. Case No. 1 of 1985 from the Court of Nagar Maha Palika Tribunal, Lucknow. The awards had come from proper custody and thus the allegations that the documents are fraudulent and not binding upon the Plaintiff is absolutely uncalled for. He submits that plaint is silent about the plea of fraud and thus the Plaintiff cannot be allowed to take the stand. The replication was of no benefit to the Plaintiff unless the facts were fairly pleaded in the plaint, vide Ramesh Lal Kapoor v. 9th ADJ Ghaziabad.1

It is submitted by Shri Prasant Chandra that in reference proceedings one Mr. S.N. Chopra, the purchaser from the father of the Petitioner in respect of which the sale deed was filed

It is submitted that acquisition map was also part of record of Writ Petition No. 137 of 1974, Mahaveer Singh Kotwal v. Lucknow Development Authority Writ Petition No. 137 of 1974 relating to the same scheme in question. The said acquisition map did not contain any cross mark. The certified copy of the acquisition plan filed by LDA also did not contain any such cross. In Jhan Lal and Ors. v. Nagar Maha Palika, Lucknow and Ors.,2 the scheme in question i.e. Ali Ganj Street and City Expansion Scheme was upheld. The Plaintiff''s father had executed sale deeds in respect of Khasra Plot No. 380 in favour of various persons. The Plaintiff''s father never disputed the notification or the awards. The Plaintiff therefore has no right to challenge the acquisition and that too after long period of time in which the acquired land was allotted to LDA and thereafter to cooperative societies.

We heard the parties at length and perused the original records. We have also seen the maps filed on record of the scheme which was upheld by the High Court. Before considering the question whether plot No. 380 was not acquired under the scheme and the evidence led by the Plaintiff, to prove it, we would like to deal with the preliminary objection that suit for injunction was not maintainable, where the Plaintiff failed to establish his possession.

The trial Court has recorded findings on issue No. 1 and 8 that the Plaintiffs are not in possession of any part of plot No. 380. The findings is based upon sale deeds executed by the Plaintiff''s father, the acquisition of the plot by the State Government under the Aliganj Road and City Development Scheme, the awards, the revenue records as well as the statements of the Plaintiff No. 1 and his witness.

The suit was filed in the Court of Munsif (South), Lucknow claiming relief for a decree of permanent injunction in favour of Plaintiffs, and against the Defendants, their men, agent and employees restraining them not to interfere in the peaceful possession of the Plaintiff over property in suit and for costs of the suit. The plaint dated 12/13.9.1995 was presented on 13.9.1995 on Court fees of Rs. 22.50, giving the valuation of the property at Rs. 1000/-. By an application (A-241), the Plaintiff, at the stage of disposal of issue Nos. 4 and 5 regarding valuation of the suit, requested for amending the valuation for the purposes of determining the jurisdiction of Court. The trial Court in its order dated 13.12.2004, found substance in the objections raised by the Defendants, that the suit was wrongly valued on the basis of the land revenue payable for the land. The Defendant No. 2 stated that the value of the property is Rs. 175/- per square feet. The application for amendment of the valuation of the suit at Rs. 1,85,50,325/- calculated @ Rs. 175 per square feet for total area of 106058 square feet, was allowed by the Court The plaint was consequently amended and the deficiency of Court fees of Rs. 478/- was paid along with the application on 29.4.2005 towards the total amount of Rs. 500/-.

We find substance in the contention of learned Counsels appearing for the Defendant Respondents that where the Plaintiff''s title is not in dispute, and he is in possession, a suit for injunction may be filed to protect the possession but when there is a cloud over the Plaintiff''s title, and he is not found in possession, the Plaintiff has to file a suit for declaration and possession with or without consequential injunction paying advalorem Court fees on the valuation of the suit.

The Defendant" Respondents have relied upon Ramji Rai and Anr. v. Jagdish Mallah,3 in which the Supreme Court held relying upon A.L.V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti and Ors.,1 that mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for an injunction. There can be a suit only for an injunction. The Court held that where the Appellants had failed to prove that they were in possession, the Court should have dismissed the suit for injunction. u/s 38 of the Specific Relief Act, 1963, an injunction restraining disturbance of possession will not be granted in favour of the Plaintiff, who is not found to be in possession. The Plaintiff can sue for permanent possession to protect his possessory title where he alleges and proves that he is in possession without adding prayer for declaration of his rights (Mullah Indian Contract and Specific Relief Acts, 12th Edn page 2815).

In Anathula Sudhakar v. P. Buchi Reddy,2 the Supreme Court has summerised the principles of law given in Sections 5, 6, 37 and 38 of the Specific Relief Act, 1963. The Supreme Court, while considering the scope of suit for prohibitory injunction relating to immovable property, held in paras 13.1 to 13.3 as follows:-

Re: Question (i):

The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1 Where a Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2 Where the title of the Plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3 Where the Plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the Defendant asserts title thereto and there is also a threat of dispossession from Defendant, the Plaintiff will have to sue for declaration of title and the consequential relief of injunction. "Where the title of Plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the Plaintiff will have to file a suit for declaration, possession and injunction.

The Supreme Court carved out a distinction in a suit for permanent injunction where the Plaintiff establishes that he is in lawful possession of the suit property and the Defendants tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land there may not be much difficulty in establishing possession. The Plaintiff may prove physical or lawful possession either himself or by him through his family members or agents or lessees/licensees. Even in respect of land without structures, for example agriculture land, the possession may be proved with reference to actual use and cultivation. In such case, the title may not be an issue, though it may arise incidentally and collaterally but where the property is a vacant site, which is not physically possessed, used or enjoyed, in such cases the principle is that the possession follows title, if two persons claim to be in possession of a vacant site, one who is able to establish title thereto, will be considered to be in possession as against the person, who is not able to establish title. This means that even though a suit relating to a vacant site, is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the dejure possession. In such a situation, it was held that where the title is clear and simple, the Court may venture a decision on the issue of title so as to decide a question of dejure possession even though the suit is for a mere injunction, but where the suit of title involves complicated and complex questions of fact and law, or where the Court feels that the parties had not proceeded on the basis that the title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the Plaintiff to the remedy of a full fledged suit for declaring and consequential reliefs.

The Supreme Court has summerised the legal principles in regard to suits for prohibitory injunction relating to immovable property in para-21 is as under:-

To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over Plaintiff''s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the Plaintiff''s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with Plaintiff''s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court willrelegate the parties to the remedy by way of comprehensive suit for declarationof title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

In the present case, the Plaintiffs filed the suit with the allegations that his deceased-father under his last registered Will dated 2.3.1990 bequeathed entire his certain immovable properties including properties at Seikhpur to Plaintiff No. 1 and died later on 11.5.1993, leaving behind Plaintiff No. 1 as his only heir. The Plaintiff is coming down in peaceful possession of the property and enjoys the same. His possession was threatened on 11.9.1995, when some employees of Defendant No. 2 came on the spot of the property as described in para-2 namely Khasra No. 380 area 3 bigha 18 biswa situated in village Seikhpur now included in the municipal limit of Lucknow and tried to dispossess him. In para-6 of the plaint, it was stated that the disputed property has not been acquired and is throughout in peaceful possession of the Plaintiff. In para-7 he stated that the land bearing Khasra plot No. 368 to 379, 381 to 398 of village Seikhapur owned by the father of the Plaintiff No. 1 was acquired and a notice dated 20.3.1978 asking possession by the mother of the Plaintiff No. 1 was issued. The Plaintiff No. 2 is the mother of Plaintiff No. 1. However, no compensation was paid to Plaintiffs for the property acquired.

It was only after the written statement was filed and thereafter documentary and oral evidence led by the parties, the Court was informed that by Notification dated 17.3.1962 issued u/s 357 of the Nagar Palika Adhiniyam and thereafter by Notification dated 26.4.1969 u/s 363 of the Adhiniyam, applying the provisions of Section 17, the land including plot No. 380 village Seikhapura was acquired and an award was declared by the Special Land Acquisition Officer on 31.12.1969. The possession of Khasra No. 380 was given to Lucknow Development Authority on 19.4.1976 and 31.1.1989. The Narendra Nagar Housing Cooperative Society-Defendant No. 2 also led evidence to show that the Plaintiff''s father had sold Khasra No. 380 sometimes in 1958. A number of sale deeds were filed in respect of the same plot out of which many vendees had claimed compensation and the matter was referred u/s 30 to the Tribunal On these pleadings and evidence, the issue No. 1 was framed to decide whether the Plaintiff is owner and in possession of Khasra No. 380. The issue No. 2 and 9 were with regard to question, whether the land was acquired by the State Government and whether the land in Khasra No. 380 has been acquired. It was admitted that in the revenue records namely Khatauni No. 1413 and 1418 Fasali (2005-10 AD) the entries were made in respect of the vendees from the Cooperative Society. There was no evidence on record to show that constructions have been raised on the land in dispute. In the oral evidence, it was stated that the boundary walls have been raised. The vendees from the Cooperative Societies were not made party to the suit.

In the affidavits of Shri Amir Alam Khan- Plaintiff No. 1 he stated in paragraphs 6 and 7 that he is the sole owner and in possession. The land was not acquired and that he is still owner and in possession of the land. In the cross examination, he was shown the sale deeds executed by his father to which he stated that he has not seen the sale deeds earlier and admitted that he has not filed any suit for cancellation of these sale deeds. He thereafter denied the signatures of his father on the sale deeds. He reiterated that he is in possession of plot No. 380 and gave its boundaries. There are no pleadings or any statement in the Examination-in-Chief that the Plaintiff had sown or harvested any crops or the manner in which he was in possession or that any construction was made by him on the land in dispute. He did not file any land revenue receipts or irrigation slips in respect of the land. Apart from his statement in the plaint, and in his statement, there was no evidence led, to prove his possession. PW-2 Girish Kumar Pandey claimed to be resident of house No. M.S. 66 Aliganj, Lucknow since 1994. He stated in paragraph-6 of his affidavit that the Plaintiff is in possession of the land and he visits every day for looking after the land. In the cross examination, he stated that the description and boundaries of the land were given to him by Shri Amir Alam Plaintiff No. 1 and stated that he has seen the boundaries, which were told to him by Amir Alam. In his cross examination held on 1.5.2009 he stated that he had seen the property one month ago. There were no electric poles on the land nor there is any road or park. The area of the land, as informed to him by Amir Alam, is 3 bigha 18 biswa and that his house is about 200 meters from the office of Kendriya Jal Sansthan. He stated that the Plaintiff lives in Chhoti Rani Kothi near City Stations and that there is no constructions on the land in dispute. On being asked as to how can he depose that the land is in possession of the Plaintiff No. 1, the witness stated that he was told by the Plaintiff No. 1 that the electric poles and electric bulbs on the land belonged to him. The witness admitted that he is an Advocate by profession and is practicing for last ten years but that he never made any effort to find out whether the land was acquired by the Lucknow Development Authority.

From the pleadings exchanged between the parties, documentary and oral evidence, we do not find any error of fact or law in the findings recorded by the trial Court and on the submissions made by the Defendants-Respondents, that though there are pleading with regard to title, the evidence led by the parties demonstrated that the matter relating to title was not simple and straightforward. The land was sold by the Plaintiff''s father in 1958 of which he had no knowledge. It was acquired by the Notifications issued under Nagar Mahapalika Adhiniyam u/s 357 dated 17.3.1962 and u/s 363 dated 26.4.1969. The possession was given to Lucknow Development Authority on 19.4.1976 and 31.1.1979 and the award was made by the Special Land Acquisition Officer on 31.12.1989. The submissions, that the Plaintiff had no knowledge about the sale deeds executed by his father, and that the land was not acquired as in original plan, the plot was marked with a cross demonstrating that the land was not acquired, as given in the legend in the map and which was highly disputed between the parties, and further the fact, that the claim made before the Land Acquisition Officer, was referred u/s 30 of the Land Acquisition Act, involved a complicated question of fact in law, with regard to the title of Plaintiff No. 1 over the land in dispute. He was required to prove the will, the saving of the title of his father even after the land was sold in 1958 and the fact, that the plot was left out of the Notifications under Sections 357 and 363 of Nagar Mahapalika Adhiniyam. On the pleadings and the evidence led by the Plaintiff, we find that there is serious cloud over the title, which required adjudication after leading extensive evidence and further that the Defendant No. 1 was not in actual physical possession of the land. He was not cultivating the land and had not raised any constructions over it or caused any activity to prove his possession. In fact, he had to amend the boundaries of the land in the plaint to identify the plot. He could not even prove de-jure possession on the basis of title to the property, as in the case of vacant site. The revenue records also did not support the Plaintiffs.

We have carefully considered the submissions made by Shri V.K.S. Chaudhary both in respect of acquisition of the land, the doubt over the presence of the original plan of acquisition to prove that the plot No. 380 was marked with cross, and rejection of the reference u/s 30 of the Land Acquisition Act by the Tribunal. We have also anxiously considered his submission with regard to possession of plot No. 1 with reference to the entries in the revenue records, which do not bear the dates and the orders of the competent authorities, by which such entries were made. These arguments further confirm our view that a complicated question of title was involved which could not have been adjudicated by the trial Court on the sketchy evidence led by the parties in a suit filed only for the reliefs of injunction. The Plaintiff paid a Court fee of Rs. 500/- only on a property valued by him by amendment at Rs. 1,85,50,325/- for summarily deciding the title. The Plaintiff No. 1 clearly took a chance of getting a decree of injunction in a suit involving complicated question of fact relating the title to the suit property. The Plaintiff not only failed to prove clear title but also possession over the plot in dispute measuring 3 bigha 18 biswas, falling almost in the middle of the land admittedly acquired by the same notifications including plot Nos. 368 to 379, 381 to 398 of village Seikhapura, Lucknow. The Plaintiff had admitted the acquisition of the other plots by the same notifications in para-7 of the plaint.

The alleged disappearance of the original acquisition plan of Aliganj Scheme filed by the Lucknow Development Authority and thereafter its restoration on record by a certified copy has been made a ground to establish that the Lucknow Development Authority played fraud on the Court to lead evidence in rebuttal that plot No. 380 was not acquired. These allegations confirm that the question of title was seriously involved and was required to be proved by the Plaintiff.

We are, therefore, of the opinion that in view of the settled legal principles reiterated by the Supreme Court in Anathula Sudhakar''s case (supra), in this case the suit for relief of permanent injunction alone was not maintainable. The Plaintiffs title over the plot in question was seriously in dispute. He was not in possession of the plot. The Plaintiff was thus required to claim declaration of title to prove his title and possession over the plot in dispute. He could not have claimed the remedy of injunction simplicitor on payment of Rs. 500/- as Court fees without claiming the declaration of title which was directly and substantially in issue between the parties.

The First Appeal is consequently dismissed. The Defendants will be entitled to the costs of Rs. 10,000/- in each of the appeals from the Plaintiffs.