Commandant 40th Battalion P.A.C. vs Sita Ram & Anr.

Vivek Bharti Sharma, J

By means of present appeal from order, appellant seeks to set-aside the order dated 08.01.2020 and 16.10.2020 passed by Civil Judge (Senior Division), Haridwar in O.S. No.310 of 2019 “Sitaram and another vs. Commandant 40 PAC”.

Facts, in brief are that the respondents/plaintiffs instituted a suit being O.S. No.310/2019 against the appellant/defendant in the court of Civil Judge (S.D.), Haridwar seeking a decree of perpetual prohibitory injunction thereby restraining the appellant/defendant from interfering in the peaceful possession and ownership of the respondents/defendants in the suit property and further not to create any hindrance in raising the boundary wall thereupon.

In the plaint, the respondents/defendants averred that the land in question (hereinafter referred as “suit property”) was acquired by U.P. Government in the year 1961-62 for Bharat Heavy Electricals Limited (BHEL) which was subsequently transferred to Irrigation Department; that, the property in question was further transferred to the Executive Engineer, Tehri Project in 1986; that, previously a suit, in respect of the suit property was also filed by one Rao Mashroor Khan stating himself owner in possession of suit property being O.S. No.223/1998 titled Rao Mashroor Khan vs. State of U.P. and others; that, in that suit, the appellant was arrayed as defendant no.4; that, in his written statement, in that suit, appellant had stated that appellant has nothing to do with the suit property; that, eventually, that suit was decided in favour of Executive Engineer, Tehri Dam Project; that, in that O.S. No.223/1998 the present appellant filed the written statement as defendant No.4, thereby admitting that the appellant/defendant has no concern with the property in question; that, later on the Executive Engineer Khara Project allotted the suit property comprised in Khasra no.149 to one “Rinku Das” and the actual possession whereof was also handed over to him on 20.02.2013; that, likewise suit property comprising in Khasra no.150 was allotted to one “Kama Das” and the actual possession was handed over to Kama Das on 20.02.2013; that, thereafter, the names of Rinku Das and Kama Das were entered in revenue records as Bhumidhars with transferable rights; that, thereafter vide registered sale deeds dated 16.11.2013 and 18.12.2013 respondents/plaintiffs Sita Ram and Vijay Pal purchased the suit properties from Rinku Das and Kama Das and the actual physical possession was also taken over by them; that, the appellant/defendant has no interest, lien or right to the property in question but despite this the appellant/defendant threatened to forcefully interfere with the possession and ownership of the respondents/plaintiffs without any basis.

Along with the plaint, the respondents/plaintiffs filed an application for ad-interim injunction under Order 39 Rule 1 and 2 of CPC. The appellant/defendant filed the objection against the ad-interim injunction application and contended that the respondents/plaintiffs have got no right over the property in question on the basis of sale deeds dated 16.11.2013 and 18.12.2013.

The Trial Court, after hearing the parties, vide order dated 08.01.2020, allowed the application of respondents/plaintiffs under Order 39 Rule 1 and 2 CPC. Vide impugned order dated 08.01.2020, the appellant/defendant was restrained from causing any interference in peaceful possession of respondents/plaintiffs of the suit property.

Thereafter, application paper no.52C2 and paper no.56C were also filed by the respondents/plaintiffs with allegations of interference in the enjoyment of possession of suit property and in construction of boundary wall thereto and it was prayed to demarcate the property in question and to provide police force so that the respondents/plaintiffs could construct boundary wall for safety of property in question.

Learned Trial Court, vide separate order dated 16.10.2020, allowed the applications of the respondents/plaintiffs.

In the impugned order, the trial Court observed that the appellant/defendant had accepted in his objection (Paper No. 34C) that the land from Khasra number 511/02 was allotted to the respondents’/plaintiffs' predecessors-in-interest namely Rinku Das and Kama Das and it has also been accepted that the plot allotted to the said Rinku Das and Kama Das were sold to the plaintiffs on 16.11.2013 and 18.12.2013. The trial court further observed that in the revenue records, the name of the plaintiffs is shown to be registered on the face of the said sale deeds.

Aggrieved from the order dated 08.01.2020 and 16.10.2020, the appellant/defendant has preferred this appeal.

Heard.

Learned counsel for the appellant/defendant would submit that a non-party, namely, Rao Mashroor Khan had also filed a Civil Revision No. 73 of 2020 before the Hon’ble High Court against the impugned orders, in which, the Hon’ble High Court vide order dated 04.11.2020 was pleased to stay the effect and operation of the order dated 08.01.2020 and subsequent order dated 16.10.2020 and directed the Civil Judge (Senior Division), Haridwar to explain under what provision of law he had passed the impugned order dated 16.10.2020.

He would further submit that the Coordinate Bench of this Court, vide order dated 12.03.2021 in this appeal, directed to list the present Appeal with that Civil Revision No. 73 of 2020 filed by the non-party to this suit.

Learned Counsel for the appellant/defendant would further submit that vide order dated 25.01.2021, the Civil Revision No. 73 of 2020 of non-party to the suit namely ‘Rao Mashroor Khan vs. Sita Ram & Others’ was allowed thereby keeping the impugned order dated 16.10.2020 in abeyance and parties to maintain status-quo till the maintainability of the suit in the absence of Notice under Section 80 CPC, is decided by the trial court.

He would further submit that the facts were apparent before the learned court below that the land in question was allotted to Rinku Das and Kama Das being the displaced persons under Tehri Dam Rehabilitation Scheme; that, they were not having any right to sell the land in question in view of the Government Order dated 06.01.2011, which was on record, whereby it is provided that without permission of Government for 10 years of the allotment, the land in question cannot be sold and if any transaction is being done during this period, the same shall be deemed to have been null and void and the land in question would vest in the Government.

He would further submit that the land in question i.e. Khasra No. 511/2 had always been in the possession of the appellant where the mango orchard is situated which is exclusively owned and maintained by the appellant and there are ample evidence on record that the said land is being used by the appellant PAC for training of cadets.

Per contra, learned counsel for the respondents/plaintiffs would submit that appeal is misconceived and filed on concocted and fabricated facts.

He would further submit that the order dated 08.01.2020 and subsequent order dated 16.10.2020 are well reasoned based on the admitted facts and circumstances of the case and correct interpretation of law applicable on these admitted facts.

He would further submit that the submissions of learned counsel for the appellant/defendant are misconceived and misplaced; that, the Government Order No.64/11-2011-12/01(19)/2003 dated 06.01.2011 would not have any effect on the absolute right of ownership of respondent/plaintiff over the suit property; that, it is an admitted case as stated in the affidavit of appellant Janmejaya Khanduri, Commandant 40th Battalion, PAC, Tehri Rehabilitation Colony, Ranipur, District Haridwar, that on 28.02.2013, the land in question was taken back from the Irrigation Department and later allotted to Kama Das and Rinku Das (the predecessors-in-interest of the respondents/plaintiffs), therefore, the alleged previous Government Order No.64/11-2011-12/01(19)/2003 dated 06.01.2011 issued prior to the allotment, shall not have any effect to any allotment of the land to the displaced persons under Tehri Dam Rehabilitation Scheme subsequent to 06.01.2011.

Learned counsel for the respondents/plaintiffs would further submit that Annexure No.3 dated 10.03.2017 to the memo of appeal itself says that the condition in the Government Order No. 64/11-2011-12/01(19)/2003 dated 06.01.2011 is being repealed by the order of the Governor.

He would further submit that in the Original Suit No. 223 of 1988 filed by Rao Mashroor Khan (a non-party to the present suit and appeal), the appellant had filed written statement as defendant, wherein the appellant had unequivocally stated that the appellant has no stake, interest, right or claim in the suit property, therefore, the appellant/defendant cannot change its position and stance.

Learned counsel for the respondents/plaintiffs would further submit that the respondents/plaintiffs are absolute owners of and in possession of the suit property; that, in the paragraph no.5 of the written statement (Annexure No. 6 to the memo of present appeal) of appellant, it is admitted that the land bearing Khasra No. 511/2 was never allotted to the appellant/defendant.

He would further submit that when appellant/defendant has admitted the position of facts in paragraph no.5 of the affidavit in present appeal also that the land comprised in Khasra No. 511/2 was allotted to Kama Das and Rinku Das, the predecessors-in-interest of the respondents/plaintiffs, on 28.02.2013, then how could the appellant/defendant can say that they are looking after the suit property since 1988; that, in paragraph no. 24 of its written statement in Original Suit No. 223 of 1988 titled ‘Rao Mashroor Khan vs. State of Uttar Pradesh’, the appellant/defendant has unequivocally admitted that the appellant/defendant does not have any right, interest and claim in the suit property.

He would further submit that after the dismissal of Original Suit No. 223 of 1988 ‘Rao Mashkoor Khan vs. State & others’ in First Appeal No. 210 of 2002, Rao Mashroor Khan (the revisionist in Civil Revision No. 73 of 2020) preferred Second Appeal No.128 of 2012 but the High Court dismissed that second appeal while recording a categorical finding that so far as the land forming Khasra No. 511/2 is concerned the same is recorded in the name of Canal/Irrigation Department, State of U.P.; that, thereafter, the suit property was allotted to Rinku Das and Kama Das, who were displaced persons of Tehri Dam Project and the predecessors-in-interest of respondents; that, the review application of Rao Mashroor Khan being MCC No. 160 of 2018 was filed but the same was also rejected vide order dated 28.06.2019; that, the order dated 05.01.2017 passed in Second Appeal No. 128/2012 was challenged in S.L.P. by Rao Mashroor Khan before the Hon’ble Supreme Court, but the same was also dismissed on 02.12.2019.

Learned counsel for the respondents/plaintiffs would further submit that this person Rao Mashroor Khan did not have any right, interest or claim over the suit property; that, his fabricated claim was dismissed upto Hon’ble Supreme Court, even then he preferred the Civil Revision No. 73 of 2020 against the order impugned in present appeal as a third party by way of seeking permission to file revision through Misc. Application No. 10714 of 2020; that, for unknown and inexplicable reasons, the Coordinate Bench of this Court allowed that Revision No. 73 of 2020 on non-existent ground that no notice under Section 80 of C.P.C. was given before filing the suit.

He would further submit that the Revision No. 73 of 2020 of Rao Mashroor Khan was allowed by the same court that had dismissed his Review Application No.160 of 2018; that, so far as the claim of appellant/defendant in the suit pending before the trial court is concerned, it is important to point out that in O.S. No. 223 of 1988, the present appellant was arrayed as defendant no.4 and in its written statement, it was categorically stated in Para 24 that the said appellant has no concern whatsoever with the land forming part of Khasra No. 511/2, which was the Khasra number of the land from which Plot No. 149 and 150 were carved out.

He would further submit that the trial court vide impugned order dated 08.01.2020 restrained the appellant/defendant from interfering in possession of the respondents/plaintiffs on suit property in question after considering the allotment and possession letters issued by the Government in favour of the predecessor-in-interest of the respondents/plaintiffs and the sale deeds executed by these allottees in favour of respondents/plaintiffs but the appellant/defendant continued to interfere in possession of the respondents/plaintiffs by misusing their might in uniform and also dismantled the boundary wall of the respondents/plaintiffs that was raised by them in order to protect their property despite the interim order dated 08.01.2020; that, the respondents/plaintiffs were, therefore, constrained to move application (Paper No. 52-C-2) before the trial court and also filed application for initiating the proceedings under Order 39 Rule 2-A which was registered as Misc. Case No. 6 of 2020 before the trial court.

Learned counsel for the respondents/plaintiffs would further submit that the appellant/defendant no.3 in utter violation of interim order dated 08.01.2020 passed by learned trial court and by misusing his official position, once again demolished the boundary wall constructed by the respondents/plaintiffs for which the respondents/plaintiffs moved another application under Order 39 Rule 2-A CPC which was registered as Misc. Case No. 33 of 2020.

He would further submit that in Misc. Case No. 33 of 2020 a report was called by the trial court from Survey Amin, which was filed along-with the map and photographs of the spot, which clearly showed that boundary wall had in fact in parts been demolished by the appellant/defendant.

Learned counsel for the respondents/plaintiffs would further submit that it is settled law that Civil Court while exercising inherent powers under Section 151 CPC in the facts and circumstances of the case, has to ensure that the ends of justice should meet and no party howsoever mighty or powerful that may be being police in uniform, violate the due process of law and directions issued by a court for upholding the majesty of Courts of law.

He would further submit that the appellant/defendant was breaching the legal rights of the respondents/plaintiffs and also violated the directions issued by the learned trial court by way of its order dated 08.01.2020 for which the respondents/plaintiffs were constrained to move two successive applications under Order 39 Rule 2-A CPC, only then the learned trial court, after considering all facts and inspection report including response preferred by appellant/defendant, passed the subsequent order dated 16.10.2020 so that the ends of justice could meet and majesty of Courts of law may be protected.

Learned counsel for the respondents/plaintiffs would further submit that in paragraph no. 8 of the plaint (Annexure 1 to the Civil Revision No. 73 of 2020) it is specifically stated that the respondents/plaintiffs gave notice under Section 80 of C.P.C. through their counsel Mr. Nishchal Kumar Sharma on 20.08.2019 and no reply to that notice was given by the appellant/defendant.

He would further submit that in the impugned order dated 16.10.2020, the trial court referred the judgment of Hon’ble Supreme Court in the case of ‘Salem Advocate Bar Association vs. Union of India’, (2005) 6 SCC 344’ and observed in paragraph 16 that there is no dispute about the fact that notice under Section 80 of C.P.C. was sent to the appellant/defendant.

He would further submit that while referring to the judgment of the Hon’ble Supreme Court ‘Salem Advocate Bar Association (supra), the trial court noted that the Hon’ble Supreme Court had directed that when reply to the notice under Section 80 of C.P.C. is not given, then the trial court can impose exemplary cost to recover the same from salary of the officer due to whose negligence or dereliction of duty to reply the same, the Government had to face the case in the Court; that, it was appellant/defendant who not only failed to reply the notice and do needful by directing his officers and policemen not to interfere in possession of respondent/plaintiff but also misused the might of police in uniform to deny the right to property to hapless and helpless poor respondents/plaintiffs.

He would further submit that in the impugned judgment dated 08.01.2020, the trial court by reasoned and speaking judgment, after discussing all the factors i.e. prima facie case, balance of convenience and irreparable loss, decided the application under Order 39 Rule 1 & 2 thereby restraining the appellant/defendant not to interfere in the peaceful possession of the respondents/plaintiffs over the suit property.

Learned counsel for the respondents/plaintiffs would further submit that in view of the fact that the appellant/defendant has unequivocally admitted the fact in his written statement filed in the Original Suit No. 223 of 1988 that the appellant/defendant does not have any right, interest, claim or lien on the suit property, it was just an “Open And Shut” case for the trial court to pass the decree of the permanent injunction; that, therefore, to say that the trial court should not grant the full and final relief as prayed for in the suit while disposing of the application under Order 39 Rule 1 & 2 is misplaced and misconceived in the present facts of the case.

He would further submit that in the Civil Revision No. 73 of 2020, the observations in respect of the counsels who were not heard, was also not in good taste.

Perused the record in view of the submissions made by the learned counsel for the respective parties.

Considered.

In the very inception, it would be pertinent to note down the following facts admitted to parties:

(i) That, an Original Suit No. 223 of 1988 was filed by Rao Mashkoor Khan in respect of the suit property in which, the present appellant/defendant was arrayed as respondent no.4.

(ii) That, in that O.S. No. 233 of 1988, the appellant/defendant filed his written statement and in paragraph no. 24 of the additional pleas, it was stated

“प्रतिवादी संख्या 4 का विवादित संपत्ति से किसी भी प्रकार का कोई वास्ता नहीं है। (…defendant no.4 has nothing to do and has no concern of any kind in respect to the property in question.)”

(iii) That, the respondents/plaintiffs clearly stated in paragraph no. 8 of the plaint of the present original suit that a notice dated 20.08.2019 under Section 80 of C.P.C. was given to the appellant/defendant but no reply was given to that suit.

(iv) That, in the impugned order dated 16.10.2020 also, the trial court observed in unequivocal words that there was no dispute about the fact that notice under Section 80 of C.P.C. was given by the respondents/plaintiffs to the appellant/defendant.

This Court, however, would not like to say anything about the submissions of the learned counsel for the appellant/defendant that the observation of the Coordinate Bench of this Court in its judgment dated 25.01.2021 in Civil Revision No. 73 of 2020 that maintainability of Original Suit No. 310 of 2019 be decided first as the suit was filed without compliance of Section 80 of C.P.C., but it is admitted fact that in paragraph no. 8 of the plaint of the original suit it is specifically averred that notice under Section 80 of C.P.C. was sent on 20.08.2019 through the counsel and no reply was made to that notice by the appellant/defendant. It is also to be noted that even in paragraph no.16 of impugned judgment dated 16.10.2020, the trial court has specifically observed that there is no dispute in respect of the issuance of notice under Section 80 of C.P.C.

It would be pertinent to observe, at the cost of repetition that in paragraph no. 24 of the additional pleas of written statement filed by the appellant/defendant in Original Suit No. 223 of 1988 stated that the appellant/defendant has nothing to do with or has no concern with the suit property. It would again be pertinent to note that this fact of admission by appellant/defendant was specifically stated in paragraph no. 3 of the plaint of the present Original Suit No. 310 of 2019, but the appellant/defendant has not denied this fact in his written statement in the present Original Suit No. 310 of 2019. The only plea taken by the appellant/defendant in his written statement was that the suit property land is being looked after by him and that as the property was sold in violation of the Government Order dated 06.01.2011, therefore, the suit property would vest in the Government. However, the appellant/defendant is completely silent on the Office Letter No. 483/11-2017-12/1(19)/2003 dated 10.03.2017 (Annexure No. 3 to Memo of Appeal), whereby the Principal Secretary had stated that the condition as per the Government Order dated 06.01.2011, (that the displaced persons shall not be able to sell the allotted plots of the land within 10 years of the allotment of that land) is hereby repealed by the order of Hon’ble Governor. It would, therefore, be pertinent to note that in view of this Office Letter the restriction, if there was any, by Government Order dated 06.01.2011, was also repealed. It is most important to note that at no point of time, the appellant/defendant has stated that suit property was ever allotted to appellant/defendant, therefore, the appellant/defendant did not have any concern with the suit property as the appellant/defendant is neither owner nor in possession of the suit property as per his own admission.

It is established principle of law that the defendant should make specific denial in the written statement and if the denial is evasive, then same would be deemed to be an admitted fact.

Rule 3, 4 & 5 of Order 8 of C.P.C. are relevant and same are extracted as under:-

“ORDER VIII- WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM

……

……

Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

Evasive denial.- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

Specific denial.- Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]”

It is important to note that in (f) of Grounds of Appeal, it is specifically admitted by appellant that suit property was transferred to Irrigation Department.

It is further very important to note that in para (i) of Grounds of Appeal, the appellant stated that suit property was allotted to person named Rinku Das and Kama Das.

It is also important to note that possession of the suit property was given to Rinku Das and Kama Das vide Possession Certificate(s) dated 20.02.2013 (Annexure Nos. 2 & 3 of counter affidavit of respondent in Civil Revision No. 73 of 2020)

It is important to note that allottees sold the suit property to respondents/plaintiffs by duly executed Sale Deeds.

Therefore, the appellant/defendant cannot be believed that he was owner in possession of the suit property.

If appellant/defendant is misusing the suit property for any use by stepping on it, then same is without any right and shall amount to trespass.

In view of this admitted position of facts and law, this Court is of the view that there is no specific denial by the appellant/defendant rather it has admitted all the facts of the plaint with necessary implications, therefore, the suit could have been decreed straightaway without asking any evidence whatsoever.

Last but not least.

The appellant/defendant is instrumentality of the State. The appellant/defendant is not only the Government Officer but also a high ranking police officer from Indian Police Service. Therefore, it is not only moral but legal duty of the appellant/defendant also to protect the rights of every citizens and individual within its jurisdiction. However, in the present case, it seems that the only law that the appellant/defendant is putting into practice is that ‘might is the right’ by misusing the power of organization in uniform.

The impugned judgment dated 08.01.2020 and order dated 16.10.2020 passed by learned Civil Judge (Senior Division) Haridwar are well-reasoned and speaking judgments taking into consideration of all the admitted facts and law applicable on the facts and circumstances of the case. Protecting the property by raising boundary wall to one’s property is indefeasible right of every individual, which cannot be denied or even curtailed. The respondents/plaintiffs have strong prima facie case in their favour. Balance of convenience also lies in their favour. No irreparable loss is likely to be caused to the appellant/defendant if the suit property is bounded by the boundary wall. The Coordinate Bench of this Court vide its judgment dated 25.01.2021 in Civil Revision No. 73 of 2020, has simply kept the order dated 16.10.2020 in abeyance only, that too, on technical ground that maintainability of O.S. No. 319 of 2019 be decided first if the notice under Section 80 of CPC was not given before filing of the suit. That is to say that the order dated 08.01.2020 passed by trial court was not stayed. Therefore, the order dated 08.01.2020 is affirmed.

As, it is stated in paragraph no. 8 of the plaint the notice under Section 80 CPC was given to the appellant/defendant, and same was also not denied, therefore, the suit O.S. No. 319 of 2020 “Sita Ram vs. Commandant 40th Battalion P.A.C.” cannot be said to be not maintainable on this count either.

Therefore, in considered view of the Court, the present appeal of the appellant/defendant is misconceived and the appeal is hereby dismissed.

In view of the above observations, facts and circumstances of the case, this Court is of the considered view that this is the fit case in which, the present Court should exercise its inherent power under Section of 151 C.P.C. for meting out substantial justice, thereby restraining the appellant/defendant from causing any hindrance, obstructions or interference in the peaceful possession of the respondents/plaintiffs over the land in question i.e. the suit property and further restrain the appellant/defendant not to cause any hindrance and obstructions by himself or his staff or employees or agents etc., in the construction of the boundary wall of the suit property constructed by respondents/plaintiffs. Rather this Court is of considered view that the appellant/defendant being an important instrumentality of the State, should see that no other person also should cause hindrance or obstruction in the constructions of the boundary wall by respondents/plaintiffs. If any person causes any obstructions, then the appellant/defendant may take appropriate steps, as per law against that person by videographing the acts of such obstruction or interference and place before the trial court for appropriate orders.

This Court is not oblivious of the fact that in normal course, the trial courts should not be directed, however, in special and peculiar facts and circumstances of the case, the trial court is requested to decide the suit expeditiously preferably within three months from the date of the receipt of this order.