Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 1259 of 2001 (Old (defective) No. 15 of 1995) 1. Daulat Ram (since deceased) S/o Dhama Ram 1/1 Data Ram Balodi 1/2 Vimal Kishore Balodi Both sons of late Daulat Ram 1/3 Yatendra Prasad Balodi 1/4 Umesh Chandra Balodi 1/5 Harish Chandra Balodi 1/6 Navin Chandra Balodi All sons of late Shri Ramesh Chandra Balodi All residents of Village Manpur Halka Sukharo, Tehsil & Post Kotdwar District Pauri Garhwal. 1/7 Mahesh Chandra Balodi Son of late Daulat Ram Posted as Deputy S.I., O.N.G.C. Dehradun. 1/8 Ram Kumar Balodi 1/9 Vinod Chandra Balodi Both sons of late Shri Daulat Ram Both R/o 14 Jogeshwari Puri Kamala Nehru Nagar, Post Office Vikash Nagar Lucknow. 2. Naveen Kumar S/o Ramesh Chandra Balodi R/o Village Manpur, Halka, Sukharo Tehsil Kotdwar, District Pauri Garhwal..Defendants/Appellants.
2 Versus 1. Gopal Krishna Balodi S/o Late Sri Rajendra Dutta 2. Basant Kishor 3. Santosh Kishor Sons of Late Sri Rajendra Dutta All residents of Village Manpur, Halka Sukharo, Tehsil Kotdwar District Pauri Garhwal..Plaintiffs/Respondents. Shri Lokendra Dobhal and Ms. Anjali Noliyal, Advocates for the appellants. Shri B.D. Upadhyay, Advocate for the respondents. Hon ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and order dated 20.12.1994, passed by District Judge, Pauri Garhwal, in civil appeal No. 8 of 1994, whereby judgment and decree dated 12.07.1994, passed by the trial court (Munsif, Kotdwar) in suit No. 52 of 1992, decreeing the suit for prohibitory injunction, is affirmed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Factual matrix of the case is that plaintiffs/respondents Gopal Krishna Balodi, Basant Kishor and Santosh Kishor, instituted
3 suit No. 52 of 1992, against the defendants Daulat Ram (since deceased) and Navin Kumar for permanent injunction, restraining them from interfering in the possession of the plaintiffs over the land detailed at the foot of the plaint. The plaintiffs (present respondents), pleaded in the plaint that land of khata khasra No. 40, situated in village Sukharo, Kotdwar, was entered in the name of Rajendra Dutta (father of the plaintiffs). Adjoining to the plot of the defendants, plaintiffs have land measuring area 1 ½ bighas over which there is a cow shed, which is in their possession since 1955. Defendants with intention to encroach upon the land in occupation of the plaintiffs, have started dismantling the boundary wall and cow shed on the aforesaid land. Hence the suit for permanent injunction restraining the defendants from dismantling the boundary wall and cow shed with further injunction prohibiting the defendants not to interfere in the peaceful possession of the plaintiffs. 4. The defendants (present appellants) contested the suit and filed their written statement in which they admitted that plot No.
4 40 is recorded in the name of father of the plaintiffs. However, rest of the contents of the plaint are not admitted. In the additional pleas, it has been pleaded that the land in suit has not been specified in the plaint. The plaint is vague. It is not mentioned that in which plot number disputed land measuring 1 ½ bigha is situated. It is further pleaded by the defendants that they are recorded tenure holder over 1.64 acre (0.659 hectare) land situated in plot No. 15 of Village Manpur, Sukharo. It is further pleaded by the defendants that the plaintiffs are not owners in possession of the disputed land. It has also been pleaded that plaintiffs have not come with clean hands. Defendants have alleged that the plaintiffs have illegally encroached upon the aforesaid land. 5. On the basis of the pleadings of the parties, the trial court framed following issues:- 1. Whether the suit is undervalued and court fee paid is insufficient? 2. Whether the plaintiffs are the owners in possession over the disputed land?
5 3. Whether the suit of the plaintiffs is liable to be dismissed on account of the description of the disputed land being vague? 4. Whether the defendants are entitled to get special costs from the plaintiffs under Section 35-A of the C.P.C.? 5. To what relief, if any, are the plaintiffs entitled? Issue No. 1 was decided as a preliminary issue by the trial court on 12.10.1992. After recording the evidence and hearing the parties, the trial court decided all the issues in favour of the plaintiffs and decreed the suit for prohibitory injunction restraining the defendants from interfering in the possession of the plaintiffs over the land in suit. Aggrieved by said order, defendants preferred civil appeal No. 08 of 1994, before first appellate court (District Judge, Pauri Garhwal). Said court, vide its order dated 20.12.1994, dismissed the appeal. Hence this second appeal was filed by the defendants before Allahabad High Court on 20.01.1995. The appeal is received under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal.
6 6. The appeal is admitted by this Court on following substantial question of law:- Whether the courts below have erred in law in ignoring the specific admission made by plaintiff P.W. 1 Gopal Krishna Balodi that the disputed land lies in Khata Khatoni No. 15, which is recorded in the name of the defendant, if so, its affect? 7. Answer to substantial question of law:- Admittedly, plot No. 40 was recorded in the name of Rajendra Dutta (father of the plaintiffs). In the plaint it is nowhere pleaded that the disputed land actually lies in plot No. 40. In a cleverly drafted pleadings of the plaintiffs, it has been mentioned that adjoining to the defendants plot, land measuring 1 ½ bigha, is in possession of the plaintiffs on which there is a cow shed of the plaintiffs and which is occupied by them since 1955. Such occupation of the disputed land by the plaintiffs is specifically denied by the defendants, who have pleaded that the land in dispute is part of plot No. 15, which is recorded in the name of defendant No. 1, who is in possession of the same. The fact that the disputed land is part of plot No. 15, is clearly admitted by P.W. 1 Gopal
7 Krishna Balodi himself in his cross examination. He has further admitted that said plot number is recorded in the name of defendant Daulat Ram. He has further stated that he does not know whether the disputed land lies in plot No.40 or not. Ignoring this vital admission by the plaintiffs, the trial court has decreed the suit for injunction against the defendants and lower appellate court has affirmed the same with the blind eyes. The lower appellate court has further erred in law by holding that the plaintiffs title is matured by virtue of adverse possession over the disputed land. There is neither any plea of adverse possession taken by any party nor is there any evidence of adverse possession. Even otherwise the evidence of adverse possession cannot be recorded when there is no plea of adverse possession in the pleading. As such, the findings recorded by the trial court as well as the first appellate court are not only perverse but against the record. 8. Learned counsel for the defendants/respondents argued that once it is concurrently found by the courts below that the plaintiffs are in possession of the land in suit,
8 the plaintiffs are entitled to the decree of injunction against the defendants. In this connection, reliance has been placed on behalf of the defendants/respondents to the case of Anathula Sudhakar Vs. P. Buch Reddy and others (2008) 4 Supreme Court Cases Pg. 594 and Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and others (2007) 13 Supreme Court Cases Pg. 565. I have gone through said case laws. In my opinion, these do not help the plaintiffs. Had it been a case that plaintiffs after occupying the land in suit had been threatened by anyone else than the true owner, it could have been said that they were entitled to protect their possession as against them and injunction could have been granted. But in the present case, as discussed above, defendants are owners of the disputed land and they are recorded tenure holder, as such, as against the true owner by decreeing the suit for injunction, the courts below have committed grave error of law. Injunction is a relief based on equity. When the plaintiffs have themselves occupied the land of the defendants and sought injunction by confusing the courts by mentioning that plaintiffs father was recorded tenure holder of plot No. 40, it cannot
9 be said that they (plaintiffs) have come with clean hands and as such, they were not entitled to the relief of injunction sought by them against the defendants. 9. Shri B.D. Upadhyay, learned counsel for the respondents drew attention of this Court to the judgment and order dated 14.07.1998, passed by Assistant Collector, Kotdwar, Garhwal, whereby said revenue authority has declared the rights of the plaintiffs under Section 229 B of U.P. Zamindari Abolition and Land Reforms Act, during the pendency of this appeal. Perusal of said order, copy of which is filed during the pendency of this appeal, shows that the order passed by the Assistant Collector, is based on the decree, passed by the trial court in the suit in question. As such, the decree which based on perverse finding passed by the civil court and first appellate court, which is subject matter of decision of this appeal, cannot confer any right on the plaintiffs. 10. For the reasons as discussed above, this appeal deserves to be allowed. The same is allowed. The impugned judgment and decree
10 passed by District Judge, Pauri Garhwal, in civil appeal No. 8 of 1994, and judgment and decree dated 12.07.1994, passed by the trial court (Munsif, Kotdwar) in suit No. 52 of 1992, are hereby set aside. Suit No. 52 of 1992, stands dismissed. However, no order as to costs. S (Prafulla C. Pant, J.) Dt:17.06.2009
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