HIGH COURT OF UTTARANKHAND AT NAINITAL SECOND APPEAL NO. 32/2008 Nagar Palika Parishad …..Defendant Appellant Vs. Smt. Prabha Yadav & Others …Plaintiff- Respondents 5.5.2008 Hon’ble Rajesh Tandon, J. Heard Shri Ramji Srivastava, counsel for the appellant and Shri M.C. Pandey, counsel for the respondents. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and order dated 27.1.2007 and decree dated 3.2.2007 passed by the District Judge, Udham Singh Nagar in Civil Appeal No. 51 of 2004. 3. Briefly stated, a suit was filed by the plaintiffs against the defendants for a decree of permanent injunction alleging therein that they are bhumidhar of khet nos. 108 Ba area 0.019 Hect. and 108 Sa area 0.101 Hect. situate at village Bhona Islamnagar, tehsil Bajpur, district Udham Singh Nagar. According to the plaintiffs, the defendants have neither any concern with the land of the plaintiff nor they are in possession at any point of time. It has been 2 stated that the defendants without any right or reason want to occupy the land. It has been stated that on 17.1.2000, the defendants along with their employees and labourers came on the plots of the plaintiff and started digging foundation in order to make construction. When the plaintiffs objected the defendants, the plaintiffs were threatened by them that they will make construction over the land in dispute. Hence, the present suit has been filed praying for the decree restraining the defendants from digging any foundation and making construction on the property in dispute. 4. The defendant nos. 1 and 2 have filed the written statement admitting therein that the said khet nos. have been recorded in the name of the plaintiff but he was not in possession of the same. The land in dispute is adjoining to Bajrang Rice Mill towards the South and there is a garbage collection house of the answering defendants for the last 30 years. In paragraph 3 of the written statemnent, the defendants have claimed the ownership towards the Northern portion of plot no. 108 Aa measuring 60 to 80 feet. In paragraph 13 of the written statement, the defendants have stated that with regard to demarcation of the land, the matter is pending before the concerned authority. Paragraph 13 of the written statement is quoted below:- “13- ;g fd oknh dk nkok jsosU;w vfHkys[kksa ds vk/kkj ij gS vkSj oknh Lo;a us mijksDr uEcjku ds vk/kkj ij mi&ftykf/kdkjh egksn;] dk’khiqj ds ;gkaW m0 iz0 ljdkj o mRrjnkrk izfroknh u0ik0i0] cktiqj ds ;gkWa gncUnh 3 gsrq izkFkZuk&i= fnukad 24-8-1998 dks fn;k vkSj ftl nkos dk uEcj 05@7 lu~ 1998&99 gS] ftl ij mRrjnkrk@izfroknhx.k us viuh vkifRr Hkh nh tks nkok oknh vne iSjoh esa fnukad 4-8-99 dks [kkfjt gqvk vkSj ftldk cktok uEcj Hkh fnukad 18-8-1999 dks gks pqdk gS vkSj ekeyk l{ke U;k;ky; ds vUrxZr fopkjk/khu gS A oknh us bl lkjoku rF; dks cnuh;rh ls vkus nkos esa iw.kZr;k% fNik;k gS vkSj ;wa Hkh dkuwuu orZeku nkok ekuuh; U;k;ky; ds ;gkWa pyus ;ksX; ugha gS] oju izFke n`"V;k gh fujLr gksus ;ksX; gS A” 5. The defendant no. 3 Kuldip Singh has filed the written statement stating therein that the khasra no. 108 Aa is recorded as banjar in the revenue records. Towards Western side of the land khasra no. 108 Aa, there is khasra nos. 108 Ba and 108 Sa. Earlier Khasra no. 108 Sa was belonging to one Misri Lal which is being used as ‘Khalihan’ and passage by the defendant no. 3 for the last 20 years. He has acquired the right of passage by way of prescription. There is no right of the plaintiff over the land in dispute. 6. On the pleadings of the parties, the trial court has framed the following issues:- “1- D;k oknhx.k fookfnr vkjkth ds ekfyd dkfct gSa\ ;fn gkWa rks izHkko\ 2- D;k izfroknhx.k dk fookfnr Hkwfe ij Vªflax xzkm.M ¼dwM+k?kj½ gS\ ;fn gkWa rks izHkko\ 3- D;k oknhx.k dk uke jktLo vfHkys[kksa esa ntZ gksus ds dkj.k ekuuh; U;k;ky; dk okn pyus ;ksX; ugha gS\ 4 4- D;k oknhx.k dks okn nk;j djus dk dksbZ dkj.k mRiUu ugha gqvk\ 5- oknhx.k vU; fdl vuqrks"k dks ikus ds vf/kdkjh gSa\” 7. The plaintiff has produced receipts i.e. paper nos. 38 ga to 56 ga per list 37 ga and paper nos. 90 ga to 95 ga per list 89 ga. The plaintiff has examined P.W.1 Mahipal Singh and P.W.2 Roop Kishore. 8. The defendant nos. 1 and 2 have examined Chandra Mohan as D.W., Rameshwar Prakash as D.W.2 and Mangu Lal as D.W.3 and have filed the affidavits i.e. paper nos. 103 ka to 105 ka. The defendant no. 3 has not adduced any oral evidence. 9. While deciding as to whether the plaintiffs are the owner of the land in dispute and further as to whether the land in dispute is trussing ground of the defendants, the trial court has recorded the finding that the plaintiffs are the owners of the land in dispute. However, it has further been recorded that though the plaintiffs are the owners of the property but they are not in possession of the land in dispute and the same is in possession of the defendant nos. 1 and 2 and there is a trussing ground on the same. 10. While deciding with regard to maintainability of the suit, the trial court has come to the conclusion that the civil court has the jurisdiction to try the suit and, therefore, the suit is maintainable before the civil court. 5 11. While deciding as to whether the plaintiffs have any cause of action to file the suit, the trial court has come to the conclusion that the plaintiffs have no cause of action to institute the suit. The trial court has recorded the finding to the following effect:- “Lo;a oknhx.k ds dFkukuqlkj fookfnr vkjkth 30-1- 2000 rd dqdZ Fkh] tc vkjkth dqdZ Fkh vkSj oknhx.k ds dCts esa ugha Fkh rks oknhx.k dks okn dkj.k mRiUu gksuk lkfcr ugha gksrk gS A 12. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiff. 13. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs went in appeal. The appellate court has allowed the appeal. Reliance has been placed on the statement of Mahipal Singh who has filed the affidavit and has proved that the name of the plaintiff has been recorded as bhumidhar in 1317 fasli and 1402 to 1407 fasli and after the death of Girvar Singh, his heirs have been recorded as bhumidhars in possession. He has proved the receipts i.e paper nos. 38 ka to 52 Ka. Same statement has been made by P.W.2 Roop Kishore, who has stated that for the last 30 years, the defendants are not using the same as trussing house. 14. On behalf of the defendants Mangu Lal was examined as D.W.3 who has also filed his affidavit. This witness has stated that the land in dispute is being used as trussing house of the defendant nos. 1 and 2 but this 6 witness in his cross-examination has failed to state the boundaries of the land in dispute. 15. On the basis of the aforesaid, the appellate court has allowed the appeal and has passed the order that the defendants are restrained from occupying the land forcibly or to use the same for garbage centre. 16. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 17. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held under:- “14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 18. Shri Ramji Srivastava, counsel for the appellant has submitted that the prayer made in the plaint is confined only to khasra nos. 108 Ba and 108 Sa and not 108 Aa. 7 19. I have looked the prayer that plaintiff has only prayed for khasra no. 108 Ba and 108 Sa and, therefore, I need not to dwell into the controversy as to whether khasra nos. 108 Ba and 108 Sa belong to the plaintiff and I confined my judgment only to that effect. 20. In view of the aforesaid, I do not find any infirmity with the findings recorded by the appellate court. Second appeal, therefore, lacks merit and no substantial question is involve in the second appeal. Second appeal, therefore, is liable to be dismissed. 21. In view of the aforesaid, second appeal is dismissed under Order 41 Rule 11 of the Code of Civil Procedure. No order as to costs. 22. However, it will be open for the appellant to take appropriate steps in accordance with law. (Rajesh Tandon, J. ) 5.5.2008 Avneet