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NAIPAL S/O GANGA versus JAICHAND S/O GANGA & OTHERS

High Court of Judicature at Allahabad

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Naipal S/O Ganga v. Jaichand S/O Ganga & Others - SECOND APPEAL No. 665 of 2007 [2007] RD-AH 11922 (13 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 27

Second Appeal From Order No. 665 of 2007

Naipal.........Vs..........Jai Chand

Hon'ble Pankaj Mithal, J.

Heard Sri Komal Mehrotra, learned counsel for the defendant-appellant.

The plaintiff-respondent had filed Original Suit No. 399 of 1997 (Jaichand vs. Naipal and others) for permanent injunction in respect of the agricultural land of Khata No. 222 Khasra No. 205 area 1 Bigha 3 Biswa situated in village Peeplabandpur Pargana Dasna Tehsil Hapur District Ghaziabad on the allegation that he is the Bhumidhar with transferable right in possession of aforesaid land by virtue of order of S.D.M., Hapur, Ghaziabad dated 11.8.1987.  The plaintiff-respondent also claimed that his possession over the said land which belong to Gaon Sabha is not liable to be disturbed as he is a landless agricultural labourer occupying the said land before 1st May, 2000 and as such by virtue of Section 122(4)(f) he is a  Bhumidhar having transferable right and it is not necessary for him to institute any suit for declaration of the aforesaid right.  The defendants-appellant claimed that they are in possession of the said land on the basis of earlier allotment which has now been cancelled.

The trial court as well as appellate court decreed the suit of the plaintiff-respondent and recorded concurrent finding of fact to the effect that the plaintiff-respondent is in actual physical possession of the said land and that the defendants-appellant have ceased to have any right over it, inasmuch as by the order of S.D.M., Hapur, Ghaziabad dated 11.8.1987 the allotment made in their favour has been cancelled.  It is admitted to the parties that the order of allotment of the said land made in favour of the defendant-appellant was cancelled by the S.D.M. The finding of possession is in favour of plaintiff-respondent, therefore, his possession is not liable to be disturbed by the defendant-appellant.   The said findings are findings of fact which require no interference in second appeal.

Learned counsel for the appellant submitted that the civil suit itself was barred by Section 331 of U.P. Z.A. and L.R. Act and as such, was not maintainable, therefore, the court below committed an error of law in decreeing the suit.

A perusal of the finding of the court below on issue no. 5 with regard to the maintainability of suit reveals that the courts below have considered the above aspect in detail and have come to the conclusion that the suit is not barred by section 331 of U.P. Z.A. and L.R. Act.  Admittedly the suit is one for permanent injunction and not for declaration of any rights under the U.P. Z.A. and L.R. Act.  The suit for permanent injunction is not based on the cause of action mentioned in schedule II of the Act, therefore, the relief of permanent injunction is not obtainable by the plaintiff-respondent under the provisions of U.P. Z.A. and L.R. Act.  Apart from the above the plaintiff-respondent is claiming right by virtue of Section 122(4)(f) of the Act for which purpose he is not required to file any suit before the Revenue Court.  Therefore, there is no error in deciding issue no. 5 by the courts below.

In view of the aforesaid facts and circumstances I am of the view that there is no error of law in the judgment sand orders of the court below and the suit of plaintiff-respondent has rightly been decreed.

No substantial question of law arises in the appeal.

Learned counsel for the appellant has further pointed out that after the order of S.D.M. dated 11.8.1997 he has initiated proceedings under Section 229-B of the U.P. Z.A. and L.R. Act for declaration of his right over the land in dispute.   Be that as it may be the defendant-appellant is at liberty to pursue the said proceedings which shall be decided by the concerned court independently without being prejudiced by any of the findings recorded herein.

The appeal lacks merit and is, therefore, dismissed with the above observations.

July 13, 2007

Ashish


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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