1 S.B.Civil Second Appeal No.449/2007 Bulaki Das vs Kishan Lal & Anr. Date of order : 3.1.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.RK Thanvi, for the appellant. Mr.Mahesh Thanvi, for the respondents. <><><> Heard learned counsel for the parties. The appellant is aggrieved against the concurrent findings of facts recorded by the two courts below in the judgment and decree passed by the trial court dated 15th Oct., 2003 and the appellate judgment and decree dated 13th April, 2004. The trial court dismissed the plaintiff's suit for declaration, possession and injunction and the appellate court dismissed the appeal, hence this second appeal. As per the plaintiff's own case an industrial plot was allotted to the appellant on 12th Nov., 1981 and a lease deed was executed in favour of the appellant. According to the appellant the possession of the said land was not given to the appellant in spite of the fact that a lease deed was executed in favour of the appellant. According to the appellant, the appellant's allotment of plot was illegally 2 cancelled by the respondent RIICO on the absolutely false ground that appellant did not raise construction of the industry within the stipulated period as given in the lease deed. According to the appellant since the possession of the land was not given to the appellant, therefore, on account of cancellation of allotment of plot of the appellant on the ground of not raising construction of the industry, the appellant filed the suit for declaration and for getting possession of the land in question in the year 1999 i.e., on 29th May, 1999 after 18 years The appellant also challenged the allotment of said industrial land in favour of respondent no.1-defendant no.1. According to learned counsel for the appellant, the trial court framed the issue no.2 absolutely contrary to the pleadings and the case of the plaintiff and instead of framing the issue, in fact, possession of the land was not given to the plaintiff-appellant by the respondent no.2 RIICO, the trial court framed the issue that the possession of the land was given to the plaintiff by the respondent no.2 and if it is so then that what is its effect. Learned counsel for the appellant also submitted that the condition of raising construction could have been enforced only upon delivery of possession by the 3 respondent no.2 to the appellant-plaintiff. It will be worthwhile to notice only few facts which are not in dispute and those facts are that according to the plaintiff's own case, the plaintiff was given land for industrial purpose by execution of lease deed dated 12th Nov., 1981. According to plaintiff's own case if possession was not given to the plaintiff in the year 1981, at the time of creation of lease then the plaintiff how could have maintained the suit for possession after about 18 years of execution of lease in his favour? The defendants submitted written statement and stated that after giving several notices, the allotment of land in favour of plaintiff was cancelled. Not only this, even thereafter of cancellation of lease on 6th Oct.,1987, the appellant was given opportunity to apply for fresh allotment of land vide letter dated 14th Sept., 1990. After six years from that letter on 17th July, 1996, the land was allotted to respondent no.1 and lease deed was executed in favour of the respondent no.1 on 22.8.1998 and possession was given to the respondent no.1. All those facts have been considered by the two courts below and it appears that the issue no.2 though not framed properly but was understood by the parties well and, thereafter, both the parties led their evidence in accordance with their pleadings and I do not find 4 that because of wrong framing of issue no.2 the appellant has been prejudiced in any manner. I do not find any substantial questions of law are involved in this appeal. Hence, the appeal of the appellant is dismissed. (PRAKASH TATIA), J. c.p.goyal/-