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Devkali Higher Secondary School Samiti Devkali v. Zila Parishad - SECOND APPEAL No. 1641 of 1978  RD-AH 18076 (26 October 2006)
Court No. 30
SECOND APPEAL NO. 1641 OF 1978
Devkali Higher Secondary School Samiti Devkali,
Shahjahanpur - Plaintiff-Appellant
Zila Parishad Shahjahanpur and another- Defendant-Respondent
Hon'ble Sunil Ambwani, J.
1. Heard Shri B.B. Jauhari learned counsel for appellant and Shri Krishna Mohan, learned counsel for respondents.
2. Devkali Higher Secondary School Samiti Devkali, Pargana and Tehsil Puwayan, District Shahjahanpur, through Shri Har Narain son of Sri Daya Narain, resident of village Devkali, Pargana and Tehsil Puaya, District Shahjahanpur as Manager, filed a Suit for permanent injunction restraining Zila Parishad Shahjahanpur through its President (District Magistrate, Shahjahanpur) and Shri Karnail Singh from interfering in their rights over 13 acres of agricultural land recorded in the name of ''Devkali Higher Secondary School Samiti Devkali'.
3. The plaintiff alleged that ''Devkali Higher Secondary School Samiti Devkali' is a registered society, which is running ''Subhash Junior High School'. The defendant-Zila Parishad is running a Higher Secondary School at Devkali. The disputed land was donated by the Bhudan Samiti, to ''Devkali Higher Secondary School Devkali' which is entered in the revenue record and that they are managing the land for more than 12 years. In the revenue records the word ''samiti' was left out for which an application has been given for corrected.
4. The defendant contested the suit on the ground that the plaintiff is illegally trying to take possession of the land. He is neither in possession nor has any right to occupy the land. Har Narain has no right to file a suit in the name of ''Devkali Higher Secondary School Samiti Devkali'. He has no concern with the institution and in fact he is running a ''Junior High School' in the name of ''Subhash Junior High School' of which he is the Manager. He has no concern with the disputed land which was recorded in the consolidation operation in the name of ''Devkali Higher Secondary School Devkali' and is in possession of the Zila Parishad.
5. The trial court decreed the suit on 23.7.1977 with the findings that the witnesses of both the parties were not able to clear the factual position. The plaintiff-Har Harain clearly stated in his examination-in-chief that he does not know the name of school run by him. He also does not know the society which is running the school and that he does not get anything from the land in dispute. In the cross examination, the witness stated that he does not know the disputed land at Inderpur and that the school has not received any benefits from the land after it is being cultivated by Jeet Singh. PW-2 Parasram Awasthi and PW 3 Vishwa Nath Tripathi also did not know as to who is in possession and the crops on the land. PW 3 stated that in the year 1962-63, a registered educational society at Inderpur received 13 acres of land in donation of which a patta was executed in the name of ''Devkali Higher Secondary School Samiti Devkali'. The land was not in the name of Zila Parishad. PW-1 Har Narain stated that a Higher Secondary School Society was registered in 1962-63 known as ''Devkali Higher Secondary School'. In the year 1965 the school started upto Class IX and X was handed over to Zila Parishad to take the school along with Rs.10,000/- and staff and teachers and the agricultural land was given to Zila Parishad.
6. The ''Memorandum of the Association' in the name of ''Devkali Higher Secondary School Samiti' was filed. It was, however, not filed to prove the existence of the society, but the fact that one Shri Parasram Awasthi was not member of the society.
7. In fact both the parties did not lead relevant and admissible evidence to establish their rights over the land in dispute.
8. The Suit was decreed on 23.7.1977. The appellate court by its judgment dated 6.3.1978 allowed Civil Appeal No. 148 of 1977 with the findings that Shri Har Narain was running ''Subhash Junior High School'. He had no concern with ''Devkali Higher Secondary School. The land was recorded in the name of ''Devkali Higher Secondary School Samiti Devkali' in the revenue record and that Section 49 of the U.P. Consolidation of Holdings Act 1963 bars any declaration to the contrary. He set aside the decree and dismissed the suit.
9. In the ''decree' prepared by the appellate court the name of Shri Har Narain is found, representing the school. However, the appeal was filed by Satya Deo, who is son of Manohar Lal and claims to be the elected Manager of the institution-''Devkali Higher Secondary School Samiti Devkali'. There is no application on record to implead Shri Satya Dev as Manager as Shri Har Narain had died and to substitute Shri Satya Deo as Manager in his place. There is no resolution of the samiti on record appointing Shri Satya Deo as Manager. The Second Appeal was as such incompetent and could not be admitted and pursued. The Registrar of the Court did not find out as to whether the appeal was filed by a competent person. It also appears from the record, that initially the name of Satya Deo son of Daya Narain was typed out, but later before the appeal could be filed a correction was made by deleting the name of Har Narain son of Daya Narayan and including the name of Shri Satya Deo son of Manohar Lal as the present Manager. This insertion appears to be without any authority nor there is any reference of any order for such correction on record.
10. During the pendency of the appeal, learned counsel for the appellant died. Shri B.B. Jauhari has entered appearance and has filed impleadment application under Order 22 Rule 10 CPC on behalf of one Shri Sushil Kumar son of Satya Dev annexing therewith a resolution of Devkali Higher Secondary School Samiti Devkali, Pargana and Tehsil Powayan, District Shahjahanpur; list of Committee of Management of the year 2004-05 signed by Sushil Kumar, Manager who is the applicant himself. This resolution does not bear any date, nor appears to be verified by any authority such as Registrar of the Society. It is also not signed and verified by the District Inspector of Schools. The resolution, as such, is highly doubtful.
11. It appears that on 1.3.2006 the application was allowed on the ground that Shri Satya Deo has expired and Shri Sushil Kumar-his son was elected as Manager. Respondent no. 2 was not served and thus the appeal was dismissed against him and was directed to be listed for final hearing. Shri Krishna Mohan, learned counsel for respondent made a statement on 8.3.2006 that he had filed an application in reply to the application of Shri Sushil Kumar on 28.2.2006, which was not placed on record. The office has traced out the application and placed it on record.
12. The application filed by Shri Krishna Mohan in opposition to the application filed by Shri Sushil Kumar under Order 22, Rule 10 of C.P.C. is supported by an affidavit of Shri Hari Raj Singh, Apar Mukhya Adhikari, Zila Panchayat, Shahjahanpur, stating therein that the second appeal was filed with an application under Section 5 of Limitation Act, sworn by Shri Har Narain son of Manohar Lal, whereas in the application under Order 22 Rule 10 C.P.C. filed on 20.10.2005, it is stated that Shri Satya Deo was the Manager of the institution. There is no resolution filed in support of the application under Order 20 Rule 10 CPC to show that Sushil Kumar is permitted to pursue the Second Appeal. Shri Krishna Mohan appearing for Zila Parishad states that the application is misconceived and liable to be rejected.
13. The suit was filed by ''Devkali Higher Secondary School Samiti Devkali' though its Manager Shri Har Narain. The appeal was preferred by the society through Shri Har Narain and that the decree prepared by the appellate court also gives the name of Shri Har Narain. The unauthorized insertion of the name of Shri Satya Deo in the memorandum of appeal after scoring out the name of Shri Har Narain is not supported by any application and order of the Court. Further, I find that there is an application dated 7.1.2003 on record filed by Shri Ajai Kumar Dwivedi appearing for Raj Narain Tiwari on behalf of ''Devkali Higher Secondary School Samiti Devkali', on record for providing correct address of respondent no. 2 for service. In this application also ''Devkali Higher Secondary School Samiti Devkali,' is represented through Shri Har Narain as plaintiff-appellant and the application is sworn by Shri Raj Narain Tiwari who claims to be Clerk of the counsel of the appellant.
14. Once there was contest between the parties with regard to the existence of the society by the name of ''Devkali Higher Secondary School Samiti Devkali' through Shri Hari Narain who also appeared as witness and was not able to give any information with regard to the school. It was not open to the learned counsel for appellant to have changed his name and insert the name of Shri Satya Deo as Manager in second appeal without seeking any approval or permission of the Court.
15. The Second Appeal is, as such, found to be filed by person who was not authorized to prefer the appeal. Learned counsel for Shri Sushil Kumar, son of Satya Deo, is not able to explain as to when Shri Satya Deo was elected as Manager and the date when Shri Har Narain expired.
16. In the facts and circumstances the order dated 1.3.2006 is recalled. The Second Appeal is dismissed on the ground that it was filed by incompetent person without seeking leave of the court. The appellant shall pay Rs. 5000/- as costs to the respondent.
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