Manvendra Singh & Others vs Avtar Singh And Others

Sharad Kumar Sharma, J

This is a defendants' Second Appeal, which has been preferred by the defendant/appellant being aggrieved against the judgment and decree dated 10th September, 2018, as passed by the 1st Additional District Judge, Rudrapur, District Udham Singh Nagar in Civil Appeal No. 46 of 2016, Nirmal Singh and another Vs. Avtar Singh and others, whereby, the Civil Appeal preferred by the defendants/appellants, has been dismissed and as a consequence thereto, the judgment and decree as rendered by the Trial Court on 31st May, 2016, i.e. the Court of 1st Additional Civil Judge (Junior Division), Rudrapur, District Udham Singh Nagar in Original Suit No. 43 of 2013, Avtar Singh and others Vs. Nirmal Singh and others, has been affirmed and, consequently, a decree has been rendered in favour of the plaintiffs/ respondents that the defendants/appellants would not to interfere in possession and resort to any act of forceful possession over the property, which has been more particularly described in the plaint as to be the land lying in Khet No. 38, lying in Khata No. 176 having an area of 1.622 hectares, situated in Village Rahapura, Tehsil Kichha, District Udham Singh Nagar.

The defendants/appellants have also challenged the judgment and order dated 02.02.2015, as it has been referred in the relief clause of the Second Appeal, in question, which related to the finding recorded on issue No.2, as decided by the Trial Court against the defendant/appellant pertaining to the bar created by the provisions contained under Section 331 of U.P. ZA & LR Act on the maintainability of the Suit before the Civil Court.

The brief facts, as would be reflected from the record, which has been filed by the defendants/appellants before this Court is to the effect that the plaintiffs/respondents had instituted a suit on 9th April, 2013, wherein, he has prayed for a decree of permanent injunction in the nature of relief as claimed therein in para 9 of the plaint, which is quoted hereunder :-

"क- यह कि डिक्री स्थायी निषेघाज्ञा बहक हम वादीगण विरूद्व प्रतिवादीगण इस आदेश के साथ पारित कर दी जाये कि प्रतिवादीगण खेत संख्या 38 रकबा 1.622 हैक्टर जिसकी सीमाएं वाद पत्र के पैरा नं0 3 में दी गई है पर खडी गेहूं की फसल को काटने व खेत पर जबरन कब्जा करने से हमेशा-हमेशा के लिए बाज रहे।

ख- यह कि हम वादीगण को खर्च मुकदमा भी प्रतिवादीगण से दिलाया जाये।

ग- यह कि हम वादीगण के हक में न्यायालय श्रीमान प्रतिवादीगण के विरूद्व कोई अन्य उचित अनुतोष यदि कोई बनता हो वह भी दिलाया जाये।"

The subject matter of the Suit, in question, constituted to be Khet No. 38, lying in Khata Khatuni No. 176 having an area of 1.622 hectares for which, the decree of permanent injunction was sought. The defendants/appellants had put in appearance and had contested the Suit by filing a written statement to the effect that the suit for decree of permanent injunction in relation to the khasra No. 38 of Khata No. 176 would not be maintainable before the regular Civil Court for the reason being that the part of the property, which constituted to be the subject matter of the suit, in question, was a property, which was covered by a lease granted by the Government under the Government Grants Act and hence, the entire Khet No. 38, could not be taken into consideration for the purposes of granting the decree of permanent injunction as claimed for by the plaintiffs/respondents in the said Civil Suit.

On institution of the Suit, in question, and after exchanged of the pleadings with regard to the distinction, which was being sought for to be drawn by the defendants/appellants in the written statement pertaining to the demarcation of the specified portion of the property alleging it to be the property covered by the land as defined under Section 3 (14) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act of 1950'), hence, the bar of Section 331 of the Act of 1950, will render the Suit as to be not to be maintainable in relation to the part of the property out of the total area of 1.622 hectares of the land lying in Khasra No. 38 of Khata No. 176 of Village Rahapura, District Udham Singh Nagar. The said issue, i.e. issue No. 2, which was formulated by the learned Trial Court on 2nd April, 2014, it was decided as a preliminary issue by an order dated 02.02.2015 by the learned Trial Court, wherein, it is contended by the defendants/appellants that the learned Trial Court has drawn a distinction with relation to the extent of the property, which would be or which could have been made as a subject matter of the suit, in question, for the grant of decree of permanent injunction, while deciding issue No.2 on 02.02.2015. The same is quoted hereunder :-

"प्रतिवादीगण द्वारा सूची 65ग से कलेक्टर/जिलाधिकारी उघमसिंह नगर द्वारा उक्त भूमि में से 0.405 है0 की भूमि के संबंध में दिनांक 21.03.2014 को पारित निर्णय की सत्यप्रतिलिपि कागज संख्या 65ग/2 प्रस्तुत की है जिसमें जिलाधिकारी / कलेक्टर उधमसिंह नगर द्वारा यह निर्णय पारित किया गया है कि वादीगण द्वारा अवैध रूप् से अन्तरित की गयी तथा वाद ग्रस्त मूमि खसरा नं0 38 रकबई 0.405 है0 पर प्रतिवादीगण काबिज नहीं है । जिस कारण न्यायालय द्वारा वादीगण का नाम खसरा संख्या 38 रकबई 1.6220 है0 मध्ये 0.405 है0 भूमि पटटेदार / प्रतिवादीगण दलीप अवतार सिंह, जगतार सिंह एवं हरविन्दर सि हके नाम खारिज कर राज्य सरकार के नाम दर्ज की गयी। उपरोक्त निर्णय से यह स्पण्ट होता है कि विवादित भूमि खसरा संख्या 38 रकबई 1.6220 है0 में से 0.405 है0 भूमि पर वादीगण का नाम बतौर पटटेदार निरस्त कर दिया गया है तथा राज्य सरकार के नाम दर्ज किया गया है । उक्त निर्णय के विरूद्व वादीगण द्वारा माननीय आयुक्त कुमाऊ मण्डल नैनीताल के समक्ष अपील योजित की गयी है, जो कि विचाराधीन है, जैसा कि पत्रावली पर उपलब्ध कागज संख्या 72 ग से स्पण्ट होता है। क्योंकि विवादित भूमि खसरा संख्या 38 रकबई 1.6220 है0 में से 0.405 है0 भूमि के संबंध में स्वामित्व का विवाद निहित है तो ऐसे में वादीगण का प्रस्तुत वाद केवल भूमि खसरा संख्या 38 की शेष भूमि के लिए ही इस न्यायालय में पोषनीय होगा।"

The said issue was decided on 02.02.2015, holding thereof, that out of the total area of 1.622 hectares of land of khasra No. 38, an area of 0.450 hectares of land, there happens to be no dispute pertaining to the ownership of the property and the dispute would be confined only in relation to the remaining part of the property, which has been excluded from being determined as to be State property in the proceedings held by the Collector decided on 21.03.2014, which was an order placed on records as paper No. 65Ga/2.

On this finding, the argument, which has been extended by the learned counsel for the defendants/appellants was that when issue No. 2 was decided on 02.02.2015, there was no dispute pertaining to an area of 0.450 hectares of land, will never relate back to the maintainability of the suit on account of the implication, which was flowing from the provisions contained under Section 331 of the Act of 1950, for the reason being that the distinction, which has been drawn by the Trial Court, while deciding the issue No. 2, pertaining to the maintainability of the suit was not from the view point that the balance area of khasra No. 38, i.e. 0.450 hectares, since was a land covered under the Act of 1950, the Suit before the Civil Court would not be maintainable rather to the contrary, it has been decided in the light of the fact that since there was no dispute of title in relation to 0. 450 hectares of land, which has been raised in the suit, hence, the Suit would not be maintainable because of the bar created by Section 41 of the Specific Relief Act.

What is important to be remarked here is that after the decision rendered on 02.02.2015, the Suit, in question, proceeded and the learned Trial Court by the judgment and decree dated 31st May, 2016, has decided the Suit in favour of the plaintiffs/respondents and has decreed the Suit in its totality in relation to khasra No. 38, having an area of 1.622 hectares of land and rightly so because the distinction, which has been sought to be carved out by the defendants/appellants, herein that issue No. 2, which has been decided on 02.02.2015, pertained to a distinction of land to be falling under the definition of land under Section 3 (14) of the Act, hence, the Suit would not lie is not a question, which was determined by the said issue, which was decided by the Court on 02.02.2015, because it was only a distinction, which was carved out that since the area of land having an area of 0.450 hectares, it was only from the view point, that since there existed no dispute in relation thereto, hence suit would be barred under Section 41 of Specific Relief Act.

This controversy pertaining to the maintainability of the Suit, which has been drawn by the defendants/appellants, herein, will not be tenable also from the view point that admittedly according to the case of the defendants/appellants, though without any evidence on record to the effect that khasra No. 38 of Khata No. 176 was a land, which was granted under the Government Grants Act and it constituted to be the part of the lease.

In answer to it, it could be said that merely because of the fact that the land has been given to the lessee in pursuance to the Government Grants Act, that will still continue to be falling under the purview of the Act of 1950 for the reason being that in view of the provisions contained under Section 129 of the Act of 1950, the government lessees have also been included, as to be a class of tenure holder by virtue of the amendment, which was brought about in the Act of 1950 by an insertion made by U.P. Act No. 24 of 1986, hence its provisions will apply in view of the provision contained under Section 86 of the Re-organization Act. Even otherwise also, under the Act of 1950, the government lessees have been distinctly defined under Section 133-A, in that eventuality, the distinction, which was being sought to be carved out by the defendants/appellants with regard to the tenability of the Suit could have only been sustained when the government lease was placed on record for scrutiny before the Trial Court because once the defendants/appellants raises the question pertaining to the maintainability of the Suit for a grant of decree of permanent injunction on the ground that land is a land under government lease, then the burden to prove the same to the contrary has to be discharged by him in view of the provisions contained under Section 103 of the Indian Evidence Act. The said responsibility was not discharged by the defendants/appellants. Consequently, as far as the distinction, which was being sought to be carved out that the suit would not be maintainable because of the bar created under Section 331, in fact, was not an issue, which was ever raised even at the time when the issue No. 2 was being decided principally by the judgment dated 02.02.2015, which constitutes to be the part of the adjudication of the final decree made by the judgment dated 31st May, 2016, decreeing the suit for permanent injunction, in relation to the property detailed by paper No.4 Ka/6 as shown in para 3 of the plaint.

The judgment dated 31st May, 2016, was put to challenge by the present defendants/appellants by preferring a Civil Appeal No.46 of 2016, Nirmal Singh and others Vs. Avtar Singh and others under Section 96 of the Code of Civil Procedure. What is important to be remarked here is that even if we go through the memorandum of appeal as preferred by the defendants/appellants questioning the judgment and decree rendered by the Trial Court on 31st May, 2016, in the memorandum of appeal, there was no such distinction, which was ever attempted to be carved out by the defendants/appellants in the memorandum of appeal by raising a pleading to the effect that the suit would not be maintainable in relation to the part of the land, which has been held out that there was no title dispute in relation to part of land in pursuance to the decision rendered on issue No. 2 on 02.02.2015. Thus, the suit was rightly held partly maintainable in view of the decision of the Collector dated 21.03.2014, the impact of which, was considered while deciding Issue No. 2 on 02.02.2015

In the absence of there being any specific ground being raised in relation to the impact of the finding recorded on issue No.2, which was decided as preliminary issue that would not come into play, when, more particularly, it was not a subject matter, which the basis on which the challenge was given to the decree of the Trial Court before the First Appellate Court by the defendants/appellants. In the absence of any such ground pleaded in Appeal filed by the defendant/appellant before the first appellate court.

Even if we go through the finding, which has been recoded by the First Appellate Court, the distinction, which has been sought to be pressed in before the Second Appellate Court in the light of the finding recorded on issue No.2 by an order dated 02.02.2015, had not been even a bone of contention in the argument, which has been extended by the learned counsel for the defendants/appellants before the First Appellate Court and that is why rightly so the Appellate Court has not considered or felt it necessary to record any finding on the same because it was neither a ground taken in the memorandum nor it was pressed before the First Appellate Court by defendant/appellant, carving out a distinction in relation to the part of the land which constituted to be the part of the lease executed under the Government Grants Act, alleging thereof that it was not an agricultural land cannot be agitated before the Second Appellate Court particularly, when the order of Collector dated 21.04.2014 was not challenged before any forum and has attained a finality.

Hence, the learned First Appellate Court too by the judgment dated 10th September, 2018, has also rightly dismissed the appeal preferred by the appellants before the First Appellate Court.

Consequently, the present Second Appeal.

What is important to be taken into consideration is that when the defendants/appellants has preferred this Second Appeal, he has modulated the relief clause in the following manner :-

"The appellants/defendants propose to challenge the impugned judgment and orders dated 10.09.2018, 31.05.2016 and 02.02.2015 passed by the learned First Appellate Court and the learned Trial Court respectively on the following grounds inter alia "

On one hand before the First Appellate Court decision on issue No.2, it was not the basis of the case of the defendants/appellants was the finding recorded on the issue No.2 on 2.02.2015, but surprisingly, when he prefers the Second Appeal, he questioned the veracity of the order dated 02.02.2015 itself, which runs contrary to the argument, which has been the foundation of challenge to the impugned orders in the present Second Appeal. Because once he wanted to derive a benefit out of finding of the judgment dated 02.02.2015, when the same was not the basis, according to the argument which was extended by the defendants/appellants in his First Appeal, the same ought not to have been challenged in the Second Appeal for first time while, questioning the judgment dated 31st May, 2016 and the order of the First Appellate Court on 10th September, 2018.

Both the Courts below have concurrently recoded a finding of fact in relation to the nature of the land and the tenability of the Suit pertaining to the grant of a decree of permanent injunction in relation to the part of the property covered under the Government lease.

For the reasons already assigned in the above paragraphs and having considered the concurrent findings recorded by both the Courts below, have not committed any apparent error on record as sought to be pressed by the substantial question of law as framed in the present Second Appeal. Consequently, this Court does not find any merit in the Second Appeal and the Second Appeal is accordingly dismissed, as it does not involve the determination of substantial question as has been framed by defendant/appellants. The Second Appeal is concluded by concurrent finding of facts recorded by both the Courts below. Hence, this Court is of the view that it does not involve substantial question of law, which is required to be answered by this Court.

Hence, the Second Appeal lacks merit and is accordingly dismissed.

However, there would be no order as to costs.