Sarveshwari Devi And Others vs State Of Uttarakhand Through Collector Pauri

Sharad Kumar Sharma, J

A very peculiar situation which has arisen for consideration before this Court in the instant Second Appeal is that, the plaintiff/appellant has challenged the judgement impugned, which has been rendered by the Civil Judge, Senior Division, Pauri Garhwal, which is titled as Miscellaneous Civil Appeal No. 20 of 2005, Ram Krishna Badoni (since deceased) v. State of Uttarakhand which will fall to be an appeal under Section 104 of Code of Civil Procedure. In the said Miscellaneous Civil Appeal, the judgement which was put to challenge by the appellant was a judgement and order dated 24.03.2005, which was rendered by the Court of Civil Judge, Junior Division, Srinagar Garhwal in Civil Suit No. 04 of 1998, Ram Krishna Badoni v. State of Uttar Pradesh.

It is no one's case in the appeal that the judgement, which was put to challenge in the Appeal i.e. dated 24.03.2005, was a regular adjudication of rights by invocation of the provisions contained under Section 9 of the Code of Civil Procedure. As soon as the learned trial Court considers the respective cases on merits and renders a judgement its formal expression is reflected in the decree as defined under the Code of Civil Procedure. Sub Section (2) and sub Section (9) of Section 2 of the CPC, 1908 read as under:-

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

(9) "judgment" means the statement given by the judge on the grounds of a decree or order;"

Once the trial Court, admittedly, in the instant case has framed a decree on 15.07.1998, then the only remedy which is available under Code of Civil Procedure to the party aggrieved would be the invocation of Section 96 of the Code of Civil Procedure, by preferring a regular civil appeal. But unfortunately, may be due to human error of the office of the Appellate Court that in the present case the same has been registered as Miscellaneous Civil Appeal No. 20 of 2005, Ramesh Krishna Badoni v. State, but since the appeal in question was preferred against a judgement and decree as defined under the Code of Civil Procedure the registration of the Appeal as Miscellaneous Appeal will not have any bearing so far it relates to the adjudication of a right of the party to the lis as decided by the learned trial Court is concerned vide its judgement dated 24.03.2005. In view of the formal expression of determination of rights by way of a judgement and decree and its challenge in First Appeal though the First Appeal might have been registered as Miscellaneous Civil Appeal No. 20 of 2005, but in its all practical purposes and in the light of spirit of the procedure contained under the Code of Civil Procedure, it would be treated as to be a regular Civil Appeal since being an appeal against a decree rendered in a regular suit.

In the case at hand, the plaintiffs are said to have occupied the property in dispute, which was registered in the name of Nagar Palika in its record as khet No. 584 having an area of 13.50 meter and 5.50 meter and the possession is shown and claimed is to be w.e.f. 1984. It is also contended by the plaintiff that over the land in question which was occupied by the plaintiff, he has raised a construction after taking a valid permission from the Nagar Palika. Later on, it is the plaintiff's case of an interference being made by the State agency as well as by the authorities of Nagar Palika, he had invoked Section 38 read with Section 39 of the Specific Relief Act and had instituted the present suit for grant of a decree of permanent injunction, seeking a decree of permanent restraint as against the Nagar Palika and the other State agencies, from interfering over the possession of the plaintiff i.e. over khet No. 584. The suit in question is shown to have proceeded ex parte and as there was no written statement filed by the defendant/respondent denying the plaint averments.

The argument of the learned counsel for the plaintiffs before the Court below was that their possession over the land in dispute was in fact a permissive possession and it could not have been disturbed by Nagar Palika except after resorting to the due process of law for the reason, that over the land in question, he has raised his residential accommodation as well as he claims to have planted fruit bearing trees and is in possession of the same ever since prior to 1984.

The plaintiff's case was further that on 18.07.1988 and even thereafter on number of occasions they have made requests to the Nagar Palika that the permissive possession, which has been accorded to the plaintiffs by the defendants to the suit the said property may be leased out in favour of the plaintiffs. Despite of assurances being extended by the Nagar Palika, no decision was taken by them on the application of the plaintiffs dated 18.07.1988, for the grant of lease hold rights over the land in question. The plaintiff further submitted that the application of the provisions contained under the Road Side Land Control Act of 1945, which prohibited raising of construction on either side of the road for a distance of 55 feet from the centre of the existing road and hence no construction should have been permitted by Nagar Palika to be raised by the plaintiffs, if the land in question which was occupied by the plaintiffs fell within the said restrictions as imposed by the Act of 1945.

In these circumstances, the case of the plaintiff was that the land, which was occupied by the plaintiff would be treated as to be a nap land and his possession over it could be regularised by the grant of lease in his favour. But the fact remains, that the record reveals that though the plaintiff might have made requests for the granting of the lease in his favour on 18.07.1988 by filing an application in that regard before the respondent, but according to the respondents' case as they have pleaded in the written statement filed before the Court below, being paper number 29 ka, that they have submitted that the plaintiff happens to be an unauthorised occupant and no legally sustainable permission, in fact, was ever granted to him to legally occupy the property in dispute, which, in fact, was exclusively vested with the Nagar Palika and thus they have prayed that since the so-called permissive possession of the plaintiff was contrary to law, and his Suit, which was instituted on 30.06.1998 deserves to be dismissed.

The plaintiff in the suit, has also come up with the case that the land over, which he was in possession and occupying the same after raising his residential accommodation, the State has later placed its board, and had demarcated the said land as to be a land which was reserved for the construction of Mahila Police Thana. This gave him a cause of action to institute the suit for seeking a decree of permanent injunction over the property in question.

At this juncture, it would be relevant to mention that after filing of the written statement the defendant No. 2, as well as, defendant No. 1, they did not participate in the proceedings and the suit was directed to proceed ex-parte against them. The learned trial Court after hearing the plaintiff over his claim which was raised in the plaint and considering the evidences both, oral and documentary as adduced by the plaintiff. The learned trial Court has held that the plaintiff has utterly failed to show, that the property in dispute ever stood vested in him by virtue of any lease or any other such validly recognised document, which could show that the possession of the plaintiff over the property in question was lawfully vested in them. Even the Survey Commission, which was sought to be appointed by the plaintiff has also submitted a report paper No. 29 x and copy of ibtan Bando vasti paper 30 x] which had shown that the plaintiff has occupied the property in question since 1984, but the learned trial Court appropriately held that the Survey Commissioner's report paper No. 29 x cannot be read as a document which could vest a title or right to occupy a property which is not vested with plaintiff under any law, nor it could be read as to be a valid permission or a document of title which was granted by the Nagar Palika in favour of the plaintiff to occupy the property in question after recourse to due and recognised process of law of vesting of property which otherwise admittedly belongs to the Nagar Palika and recorded with them.

The learned trial Court also recorded a finding that no right of the plaintiff would be perfected over the property in question merely because of the age of his possession over the land in question as there had been no declaration made nor sought to be made by the plaintiff in his favour in relation to the property in dispute by any recognised mode of law or proceedings. The learned trial Court also declined to accept the argument as extended by the plaintiff to the effect that he was in possession of the property in question on the basis of the permission which plaintiff claimed was granted to him by the Nagar Palika, because the said fact was neither established by any document on record nor in accordance with the oral testimony of the plaintiff himself. The learned trial Court on considering the evidence both oral and documentary led by the plaintiff had rather recorded a finding that since the land in question is reserved for the public purposes for establishment of Mahila Police Thana, it aimed at the used of the property in the interests of public at large as such since the property was a State land which was never ever recorded in favour of the plaintiff, the learned trial Court held that the suit for permanent injunction as instituted by the plaintiff under Section 38 read with Section 39 of the Specific Relief Act could not be decreed in his favour and consequently by the judgement and decree dated 24.03.2005 the suit was dismissed.

The plaintiff (appellant herein) in the present Second Appeal had thereafter preferred the First Appeal before the learned First Appellate Court of Civil Judge (Senior Division), Pauri Garhwal (though it was wrongly registered as Miscellaneous Civil Appeal No. 20 of 2005), the Appellate Court too after considering the rival contentions as well as the arguments which were extended by the plaintiff, the plea of the plaintiff to the effect that he was being forcefully evicted from the property in question, was not accepted by the learned trial Court on the ground that even the plaintiff in the ex-parte proceedings before the trial Court or before the Appellate Court was unable to prove the same by leading any independent witnesses to show that ever any effort was made by the defendant to forcefully evict the plaintiff from the property in question.

The Appellate Court had recorded a finding that on the scrutiny of the order sheet of the learned trial Court, it has revealed that the issues which were framed earlier on 08.09.1988 were rejected by the trial Court's order dated 30.08.1999 and the said order dated 30.08.1999 was not put to challenge by the plaintiff/appellant and hence the finding has been recorded exclusively based upon the document, which the plaintiff has relied upon to show his right over the property in question that it was land recorded with Nagar Palika. Surprisingly, at the appellate stage for the first time, the plaintiff has come up with the case that the property in dispute which he has claimed to be in possession since 1984, before the learned trial Court that he has purchased the same by a registered sale deed, but the said sale deed by virtue of which plaintiff modulated to claim his title over disputed property too was neither placed on record as evidence nor proved by the plaintiff at any stage of the proceedings, and thus the contention raised by the plaintiff/appellant that he has raised the construction over the property which he at the appellate stage for the first time has contended to have raised it on a property which was purchased by him was not established by him by any independent document being brought on record. Particularly, when the plaintiff may be at the appellate stage claims his title by the sale deed, the burden to prove a valid vesting of title was to be discharged by him.

The First Appellate Court too, after considering the case of the plaintiff had dismissed the Appeal by the judgement dated 29.03.2011 and had re-affirmed the findings recorded by the learned trial Court to the effect that the plaintiff has un-authorizedly occupied the property belonging to the Nagar Palika since 1984 and it also recorded and re-affirmed the finding that the property stands recorded in the name of the State and the theory of being in permissive possession or in an alternative plea which was raised by the plaintiff at an appellate stage of having purchased two nalies of land over which construction has been raised by him was neither been proved nor established by him even before the appellate Court by producing any independent evidence, hence the learned Appellate Court too by the impugned judgement dated 29.03.2011, has affirmed the judgement of the learned trial Court and dismissed the Appeal of the plaintiff appellant.

Considering the findings, which have been recorded by both the Courts below, it has been concurrently recorded that the appellant happens to be in an unauthorised occupant of the property which as per documents on record stands recorded with the State, hence the substantial question of law as framed by the co-ordinate Bench of this Court on 09.08.2011 to the following effect as to whether the trial erred at law on not framing the appropriate issues does not arise for consideration before this Court, which reads as under:-

"Whether the proceedings in the trial court as well as in the lower appellate court are vitiated on the grounds of violation of Order 14 Rule 2 inasmuch as there was no specific findings on any of the issues earlier framed by the trial court vide order dated 8.9.1998?"

This issue could also be answered from the view point that if the trial Court's judgement is scrutinised, it had recorded a finding though defendant No. 2, had filed its written statement paper No. 29 d, but later on by an amendment dated 26.02.2000, the name of defendant No. 2 was deleted from the array of the parties to the suit. And thereafter the proceedings which was held ex parte as against the sole defendant, there was no occasion for the trial Court, or the necessity to frame any issue because the burden to establish his case even otherwise also required to be discharged by the plaintiff to show his title. The substantial question framed by the Court is not invoked for adjudication because the issues were later on rejected by the order dated 30.08.1999, this order has attained finality.

Even otherwise also, there was no legally justifiable right vested with the plaintiff to claim his right over the land recorded with the State Government, the title of which never stood proved by the plaintiff, even also because of the contradictory plea of title raised by plaintiff would rather show that the plaintiffs themselves were not sure about any legal vesting of title with them. In view of the reasoning which have been assigned by both the Courts below, it rather shows that judicial courts will never come forward to grant a decree of permanent injunction in favour of the plaintiff who apparently has been held out to be in an unauthorized possession of the land vested with the State, as relief of injunction being an equitable relief could only be granted in favour of the person who hold a legally enforceable rights and not to the plaintiff, who is otherwise held and found to be guilty of an illegal act of encroachment.

Consequently, the Second Appeal is concluded by finding of facts and the same is accordingly dismissed.