U.P. Avas Evam Vikas Parishad vs Harprit Singh & Another

Lok Pal Singh, J

Second Appeal is directed against the judgment and its decree dated 30.07.2012, passed by Special Judge (UMC) / Addl. District Judge, Dehradun, in Civil Appeal no. 228 of 2001, U.P. Avas Vikas Parishad Vs Sardar Harnam Singh & others, whereby the appeal filed by the appellant / plaintiff has been dismissed and the judgment and decree dated 23.10.2001, passed by Civil Judge (Sr. Div.) / FTC VI, Dehradun, in Civil Suit (O.S.) no. 390 of 1991, Avas Vikas Parishad U.P. Vs Sardar Harnam Singh was affirmed.

2) Present second appeal was admitted on 27.05.2013 on the following substantial question of law:

Whether the courts below have erred in law in allowing the counter claim of the respondent / defendant in respect of item no. 5 and 6 of the plaint map and dismissing the original suit filed by the appellant / plaintiff for eviction of the defendants (present respondents) from the property in suit?

3) Facts leading to filing of the present case are that the plaintiff / appellant instituted the said suit, inter alia, on the grounds that the plaintiff had acquired the land bearing khasra nos. 58, admeasuring 1.16 acres and Khasra no. 68, admeasuring 0.90 acres along with other plots, situated in Village Ajabpur Kalan, Pargana Central Doon, Dehradun and the possession was delivered to the plaintiff on 25.06.1975. Since then the suit property is in the possession of the plaintiff. Plaintiff prepared Nehru Nagar, Yojna no. 1 for construction of the residential houses. A Notification under Section 28 of the U.P. Avas Evam Vikas Parishad Act, 1965 (hereinafter referred to as 'the Act') was issued in the official Gazette and thereafter another Notification under Section 29 of the Act was published. Notices were also issued personally to the land owners. The said land was acquired by the plaintiff. The original defendant Harnam Singh had illegally encroached upon a portion of khasra nos. 58 and 68, total measuring 1629.70 sq. mt. of the land (hereinafter referred to as 'the suit property'). It is averred that the defendant had illegally constructed a boundary wall and also constructed personal house and Gurudwara over the suit property. Since the defendant has illegally encroached upon the suit property, the plaintiff served a notice under Section 82 of the Act on 04.01.1991 and demanded the possession from the defendant. Since the defendant did not comply with the notice, then the plaintiff was constrained to institute a suit for ejectment of the defendant from the suit property.

4) Defendant Sardar Harnam Singh put in his appearance in the suit. He denied the plaint averments specifically. It is averred that the defendant is in possession of the suit property prior to 25.06.1975 and raised the permanent construction over it. The land Khasra no. 58, admeasuring 0.14 acres, was purchased by him through registered sale deed dated 13.12.1962, which was duly registered in the office of Sub Registrar, Dehradun on 06.12.1962. Through another sale deed dated 09.08.1961, the defendant purchased 0.96 acre land of said khasra no. 58, from one Ram Avatar, which was also duly registered in the office of Sub Registrar, Dehradun on 17.08.1961.

5) Notice dated 04.01.1991 issued under Section 82 of the Act as well as notice dated 15.01.1991 by which the defendant was asked to remove his illegal encroachment were sent to the defendant by the plaintiff.

6) In the form of oral evidence, plaintiff adduced the evidence of PW1 Kamal Nayan Kala, Junior Engineer and PW2 P.C. Bhatt, Surveyor. Following documents were produced in the form of documentary evidence (i) notice dated 15.01.1991 by which the defendant was asked to remove his illegal encroachment (paper no. 6C), (ii) letter written to the Superintendent of Police, (iii) notice dated 04.01.1991 issued under Section 82 of the Act (iv) copy of Notification dated 03.03.1966 regarding acquisition of land (v) copy of Award dated 01.12.1976 (vi) form dated 25.06.1975 regarding taking of possession (vii) copy of the khasra khatauni and (viii) copy of map prepared in respect of Nehru Nagar Yogna.

7) Defendant adduced the evidence of DW1 Harnam Singh, DW2 Sunder Lal, DW3 Indrapal, DW4 Satya Prakash, DW5 Mohan Singh, DW6 Kesar Singh and DW7 Jaswant Singh. In the form of documentary evidence (paper no. 48C to 59) regarding water connection bills issued by the Garhwal Jal Sansthan; letter sent to the District Magistrate; electricity bill; license fee of the Nagar Palika; receipts issued by Nagar Palika Mussoorie; receipt issued by the State Electricity Board and copies of plaint, judgment and decree of civil suit no. 270 of 1994, passed by Addl. Civil Judge (Sr. Div.), Dehradun; certified copy of the sale deed and copy of the certificate issued by the District Magistrate on 17.05.1966, were produced.

8) The trial court framed the necessary issues and having considered rival submissions and documents brought on record dismissed the suit of the plaintiff holding that the plaintiff could not prove its case by leading evidence. The first appellate court, which is the last court of facts and law, has elaborately discussed the facts and has recorded categorical finding that the plaintiff / appellant could not prove its case and dismissed the appeal filed by the plaintiff / appellant vide judgment and decree dated 30.07.2012.

9) Heard learned counsel for the parties and perused the entire material available on record.

Answer to the substantial question of law:

10) Both the courts below have recorded concurrent findings of fact that the plaintiff / appellant did not pay the compensation to the land owner in regard to the alleged acquisition of land of khasra nos. 58 and 68. It is apt to note here that Sardar Harnam Singh raised his objection before the Acquiring Body that neither the award is prepared nor any compensation has been paid to the land owners in regard to the land of khasra nos. 58 and 68. His objections were rejected.

11) Feeling aggrieved, Sardar Harnam Singh preferred Writ Petition no. 1075 (M/B) of 2006, Sardar Harnam Singh Vs State of Uttar Pradesh through Secretary, U.P. Avas Evam Vikas Parishad and others. The Division Bench of this Court vide order dated 28.08.2006 held that a perusal of the Award dated 01.12.1976 would reveal that no award has been made in respect of khasra nos. 58 and 68. Relevant paragraphs of the order are excerpted hereunder:

"A perusal of the award dated 01.12.1976 shows that no award has been made in respect of Plot nos. 58 and 68, which are mentioned at page no. 29 of the writ petition by the S.L.A.O. In the remark column, the S.L.A.O. has recommended for making an application to the Board for exemption of the constructed portion, therefore, the award for the constructed area was not made. The award for the constructed area was not made within two years from the date of enforcement of the Land Acquisition Amendment Act no. 68 of 1984 by which Section 11-A was inserted. In view of Section 11-A, the notification in respect of the constructed area stood lapsed by operation of law contained in proviso to Section 11-A of the aforesaid Act. Hence, prima facie, the land covered by the construction did not stand vest in the U.P. Avas Evam Vikas Parishad.

Thus, in view of the above, the respondents are restrained from interfering with the possession of the petitioner over the area in question and it is provided that the order dated 01.08.2006, passed by respondent no. 2 Housing Commissioner, U.P. Avas Evam Vikas Parishad, Lucknow which is contained in Annexure no. 1 to the writ petition shall remain stayed.

The interim relief application is disposed of accordingly."

12) Subsequently, by Rule of the Court the jurisdiction of hearing writ petition under Article 226 of the Constitution of India was assigned to learned Single Judge. The writ petition no. 1075 (M/B) of 2006, Sardar Harnam Singh Vs State of U.P. & others was renumbered as Writ Petition no. 1861 (M/S) of 2007. Learned Single Judge on the submission made by learned counsel for the parties finally disposed of the writ petition on 21.08.2009. The judgment and order dated 21.08.2009 is extracted hereunder:

"Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Paresh Tripathi, Advocate for the petitioner.

Mr. K.S. Mehta, Advocate for U.P. Avas Evam Vikas Parishad.

Heard learned counsel for the parties.

Learned counsel for the parties states that ends of justice shall meet in case petition is allowed in terms of interim order dated 28th August 2006 passed by this Court.

In view of the statement of learned counsel for the parties, the writ petition is disposed of in terms of the interim order dated 28th August 2006, passed by this Court."

13) Feeling aggrieved by the judgment and order passed in both the writ petitions, U.P. Housing and Development Board and others (respondents in both the writ petitions) preferred Special Leave to Appeal (Civil) no. 228-229 of 2010 before the Hon'ble Apex Court. Both the Special Leave to Appeal were dismissed on 15.01.2020. Thus the judgment passed by this Court in writ petition no. 1861 (M/S) of 2007 has attained finality.

14) In view of the fact that the land khasra nos. 58 and 68 neither was acquired nor any award has been made or compensation was paid to the land owners, without their being any consideration paid to the land owners it cannot be said that the land of khasra nos. 58 and 68 of Village Ajabpur Kalan ever vested in the plaintiff / appellant.

15) Mr. Pankaj Purohit, learned counsel appearing on behalf of the appellant U.P. Avas Evam Vikas Parishad vehemently argued that a review application has been filed seeking review of the judgment and order dated 21.08.2009. He submits that the judgment passed by writ court has no binding effect upon the appellant. The submission of learned counsel for the appellant is misconceived.

Hon'ble Apex Court in the case of P. Bandopadhya & others Vs Union of India & others (2019) 13 SCC 42 having relied on a Constitutional Bench judgment in Direct Recruit Class II Engineering Officers' Association Vs State of Maharashtra and others (1990) 2 SCC 715 has held that it is well established that the principle of res judicata are applicable to the writ petitions.

16) Relevant paragraphs of the judgment rendered by Hon'ble Apex Court in P. Bandopadhya & others Vs Union of India & others (2019) 13 SCC 42 are extracted hereunder:

"8.7. The decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of res judicata.

Reference can be made to the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & Ors., (1990) 2 SCC 715, wherein Sharma, J., on behalf of the five judge bench, held:

"35...It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court's judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v. State of UP AIR 1961 SC 1457 held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32..."

(emphasis supplied)

Albeit the decision of the Constitution Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater force to bar a Writ Petition filed under Article 226, like the one filed by the present Appellants, by the operation of the principle of res judicata."

17) Though the substantial question of law has not been defined in the CPC, the Hon'ble Apex Court in the case of Santosh Hazari vs Purushottam Tiwari (2001) 3 SCC 179 has held that a substantial question of law goes to the merit of the case. It has further been held that - to be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. Relevant paragraph of the judgment is excerpted hereunder:

"In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors., AIR 1953 SC 521, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code.

A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

18) The ratio laid down in Santosh Hazari vs Purushottam Tiwari (2001) 3 SCC 179 was considered by the Hon'ble Apex Court in the case of U. Manjunath Rao vs. U. Chandrashekhar and another (2017) 15 SCC 309, wherein it has been held that it is the duty of the first appellate court to record its own independent findings in case of affirming the findings of the trial court. While reversing the findings of fact recorded by the trial court, the first appellate court should be vigilant in recordings its own findings.

19) In so far as substantial question of law framed in this second appeal is concerned, the same does not seems to be a substantial question of law. The substantial question of law so framed has been formulated in regard to the allowing of the counter claim filed by original defendant Sardar Harnam Singh and in the case in hand no substantial question of law is framed which substantially deals with the rights of the plaintiff / appellant. Neither such substantial question of law is framed nor pointed out by the learned counsel for the appellant during the course of argument, as such, no substantial question of law is made out in the present second appeal. The substantial question of law so framed does not help the appellant in any way. The substantial question of law in regard to partly rejecting the defendant's counter claim has been dealt with in separate Second Appeal filed by the respondents (legal representatives of late S. Harnam Singh).

20) Hon'ble Apex Court in C. Doddanarayana Reddy (Dead) by LRs and others Vs C. Jayarama Reddy (Dead) by LRs and others AIR 2020 SUPREME COURT 1912 has categorically held that findings of fact cannot be interfered with in second appeal unless the findings are perverse. The relevant paragraphs of the judgment are excerpted hereunder:

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan, (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts.

... Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

21) In the opinion of this Court no substantial question of law is found involved in the present second appeal. Furthermore, I do not find any perversity or illegality in the concurrent findings recorded by the courts below. Thus, no case for interference is made out.

22) Resultantly, the second appeal is liable to be dismissed. The same is hereby dismissed.

23) No order as to costs.