IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Second Appeal No. 98 of 2003 Ram Prasad … Appellant. Versus Surendra and 3 others …. Respondents. Mr. Arvind Vashist, Advocate for the appellant. Mr. Lok Pal Singh, Advocate for the respondents. Dated: July 29, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 100 of the C.P.C. has been preferred against the judgment and decree dated 30-8-2003, passed by Additional District Judge/F.T.C. Ist, Haridwar in Civil Appeal No. 47/2007 and judgment and decree dated 27-11- 2000 passed by Civil Judge (S.D.), Roorkee in O.S. No. 112/1991. Brief facts of the case are that plaintiff/appellant instituted a suit against the defendants/respondents for permanent injunction before the Civil Judge (S.D.) Roorkee. According to the plaintiff his father Sita Ram was the owner in possession of the land shown by letters A,B,C,D, in the map annexed with the plaint. His father had obtained the said property from his ancestors. The eastern side of the said land is used as Abadi by the plaintiff and in remaining parts he used the said land as sahan and grow vegetables. In the property shown with letters B,C,E,F, there exist pucca houses. Prior there were thatch, which were in the occupation of plaintiff’s father. The main door 2 of these houses is towards west. Property shown by letters E,F,G,H, is used as place for worshipping God and property shown by letters A,D,G,H, is in the shape of vacant plot, in which the plaintiff use to grow vegetables and there are fruit bearing trees of Beri, Jamun, Gular, guava , bananas etc. There exists 6 feet wide wall towards north and south and west of property E,F,G,H, and towards north west, foundation of property A,D,H,G, has been laid. According to the plaintiff property B,C,E,M is his main abadi land in which earlier his father and now he is in occupation and land shown by letters A,D,E,F, is the appurtenant sahan land of main abadi land, B,C,E,M, the owner of the said land was Sita Ram, father of the plaintiff, who had executed will dated 12-6-85 in favour of the plaintiff. Sita Ram has died in June 1988 and after his death, the plaintiff is the sole owner of the land in dispute. The further claim of the plaintiff/appellant is that he has made pucca construction over the property B,C,E,F, and the house is numbered as 26 in Municipality. The defendants have no concern with the disputed property. The plaintiff also alleged that one Samay Singh had instituted a suit No. 8/82 pertaining to the disputed land and the said suit was contested by his father. That suit was dismissed. According to the plaintiff, the defendants have threatened to raise construction over the disputed property, hence the suit was filed. The defendants contested the suit by filing written statement and denied the averments made in the plaint. According to them the disputed property bears Khasra No. 326 and it falls within Mohalla Malkipur Latifpur within the boundary of 3 Municipality Roorkee. In the north of the land, there is the land of Roop Chand; in the south there is Khadanja; in western side there is house of Puran Lal and in the west there is property of Phoolchand. The land has been shown by letters Aa,Ba,Sa,Da, in the map annexed with written statement. The land La, Ba,Sa, Ra, is public Dharmshala and Wa,La,Ra,Ya, is place of God where public at large offer their pooja from the times of their forefathers. At place Pa,Wa,Ya,Fa, there is Shivling and at its nearby place there is vacant plot of God. This disputed land is non-Z.A. area and provision of Z.A. & L.R. Act do not apply to this land. The further allegation of the defendants is that the disputed land has never settled with the father of the plaintiff and the plaintiff or his father was never in possession of the said land. At place La,Ba,Sa,Ra, the villagers of Malakpur Latifpur and the devotees have constructed a Dharamshala. The so called will executed by the father of the plaintiff in his favour is a forged document. As regards the Suit No. 8/82 referred by the plaintiff in the plaint, the defendants assertion is that the said suit was not filed pertaining to the land in suit. The suit is barred by the provisions of Section 38 and 41 of the Specific Relief Act. They further alleged that the suit is also barred by the provisions of U.P. Z.A. & L.R. Act. The defendants also filed counter-claim and claimed that the plaintiff be restrained for raising any construction on the disputed land as the land is place of God and the deity (shivling) is worshipped by the public at large. 4 On the pleadings of parties the learned Civil Judge (S.D.) framed following issues:- 1- Whether there is place of God, Shivling and public Dharamshala, over the disputed property from ancient time?. 2- Whether the disputed land, having the area of 2 Biswa, is situated within the boundary of Municipal area of Roorkee in plot No. 326?. 3- Whether the disputed land, being the place of God, Shivlinga, and Dharamshala, is dedicated to God?. 4- Whether the suit is barred by Section 38 and 41 of Specific Relief Act?. 5- Whether the plaintiff is owner in possession of the land in suit?. 6- Whether the suit is devalued and court fee paid is insufficient?. 7- Relief?. 8- Whether the counter claim has been framed against the provision of law? If so, its effect?. 9- Whether the relief sought through counter claim is barred by Order 1 Rule 8 C.P.C.?. 10- Whether the suit is bad for non joinder of Gram Sabha Malakpur Latifpur and the Temple?. If so, its effect?. 11- Whether the disputed land A,D,E,F, is the appurtenant land of property B,C,E,F,?. If so, its effect?. Parties adduced oral as well as documentary evidence in support of their case. 5 The learned Civil Judge (S.D.) after hearing learned counsel for the parties and considering the evidence, partly decreed the suit and restrained the defendants by interfering in the land shown by letters F,E,C,D, in the plaint map. The counter claim was also allowed in part and restrained the plaintiff not to interfere in the Pooja Archana of the defendants and the public at large at the place shown by letters ‘Aa, Da, Ra, La’ in the map annexed with written statement. Both the parties will be at liberty to offer their Puja Archana in the place of God. Feeling aggrieved, the plaintiff filed appeal before the Additional District Judge/ I F.T.C. Roorkee, who vide judgment and decree dated 30-8- 2003 dismissed the appeal. Thereafter, the plaintiff- appellant has preferred this appeal before this Court. At the time of admission of appeal, the Court admitted the appeal on the following substantial questions of law: 1. Whether the decreed counter claim which was filed without seeking prior permission of court under Order 1 Rule 8 C.P.C. was not maintainable and the same was wrongly entertained and decreed by courts below? 2. Whether the counter claim which is required to be in form of plaint disclosing cause of action and other material facts and which was not filed in accordance with the procedure 6 given in Order 8 Rule 6A of C.P.C. same was not maintainable and whether the same was wrongly maintained and decreed? 3. Whether the evidence of Lekhpal report was not admissible in evidence in the absence of survey and the courts below committed error in deciding the dispute on its basis? It is worthy to mention here that defendants/respondents did not file any counter claim before the Lower Appellate Court against the rejection of their claim. It is the plaintiff only who filed the appeal before the Lower Appellate Court and against the dismissal of the appeal he has again filed the Second Appeal before this Court. The record reveals that the plaintiff/appellant filed the Will in order to show that Sita Ram, father of the plaintiff/appellant executed the Will with regard to some property in his name on 12.6.1985, but the Will, which is paper no. 20-A on the record reveals that nowhere it has been recited therein that from where Sita Ram obtained the property mentioned in the Will. The Will deed further reveals that only the two properties have been indicated therein. A plot measuring 87 x 23 ft. is indicated in the Will which shows that on the date of execution of Will i.e. 12.6.1985 nothing was constructed over the aforesaid land. Ram Prasad (PW-1) in his statement before the court below has stated that he is the owner of property mentioned as ‘A, B, C, D’ in the plaint map. He has also stated that this property is being inherited by him for the last 7 several years as it is the ancestral property. He has also stated that at the time of abolition of Zamindari the property was in possession of Sita Ram. This witness has further stated that his house is situated to the West of the house of Pooran and at the West of his house (plaintiff’s) there is a ‘deity’ place which is owned by him. He has also stated that this deity place has nothing to do with other people living in the village. He has also stated that towards the West of this deity place his plot is there which has been inherited by him from his father. He has also stated that this plot is a part of the deity place. The trial court as well as appellate court has discussed evidence of the plaintiff in detail and both the courts have reached to the conclusion that the plaintiff in his deposition has stated that disputed properties Municipality number is 26 and it is situated in Khasra No. 249. This witness in his cross- examination has stated that Nagar Palika levied the tax pertaining to House No. 24 in the name of his father and House No. 24 is towards East of the disputed property. This witness has further stated that about 45 years back his father constructed a hut in the disputed property. Again in cross- examination this witness has stated that disputed land was inherited by him from his father and the house number with regard to disputed property is 41 (old number was 26). Both the courts below came to the conclusion that the plaintiff previously deposited that disputed property is house no. 24, but subsequently he changed his version and stated that house number is 26. The ancestors of the plaintiff belonged to eastern U.P. and this fact has not been denied by him, therefore, the ancestors of the plaintiff must have obtained that property either 8 through sale-deed or any other document but no document has been filed by the plaintiff/appellant. The plaintiff also could not adduce any evidence with regard to land ‘A, F, E, D’ which he claims to be ‘Sahan’ of the disputed house and appurtenant land. Both the courts below have discussed this aspect in detail and have recorded their finding on this factual aspect. It has also been observed by both the courts below that with regard to the rightful ownership over the disputed land the plaintiff has given the contradictory statement. The record reveals that in the year 1991, PW-5 Daya Chand Gautam was the Registrar Kanoongo in Tehsil Roorkee, who has proved paper no. 90-C, which are application and report submitted by Lekhpal. As per the report the disputed property which is the deity place belongs to Khasra No. 326. As per the report also, the deity place is in existence over the disputed land for the last more than 60 years and all the villagers use to offer worship over there. The report further reveals that villagers after collection donation renovated this deity place. This report therefore makes it clear that at the disputed place the vacant land which is towards the West of the deity place is a part of the deity place and the plaintiff had never been in possession over the same. It is further made clear that land in question is situated in Nagar Palika, thus Section 9 of U.P. Z.A. & L.R. Act does not come into play. Learned counsel for the appellant has cited before me a decision of the Hon’ble Apex Court rendered in the case reported in AIR 2003 SC 1685, Kuldip Chand and another vs. Advocate General to Government of Himachal Pradesh and 9 others and has submitted that when any premises is used for the last several years for the purpose of Dharmashala and no instrument of trust was created and the right of general public is not established, then mere long user of a property as Dharmashala by itself would not lead to an inference that dedication of the property by the owners in favour of the public was complete and absolute. I have perused the ruling cited by learned counsel for the appellant carefully and I am of the view that the above-cited ruling has no application to the facts and circumstances of the present case. As far as substantial question of law framed at serial no. 1 is concerned, I am of the view that counter claim filed by the defendants/respondents before the court below under Order 1 Rule 8 C.P.C. is not barred because on the basis of the assessment of the evidence available on record it is established that land in question is being used by the villagers for the purpose of their worship. As far as substantial question of law framed at serial no. 2 is concerned, I am of the view that provisions of Order 8 Rule 6A C.P.C. has also been complied with as both the courts below have answered all the points involved in the case. Learned counsel for the appellant has invited my attention towards substantial question of law framed at serial no. 3 and I am of the view that this question is also answered in negative as the 10 Lekhpal report was proved by Daya Chand Gautam (PW-5). For the reasons stated above, I am of the view that all the substantial questions of law framed in the appeal are answered in negative. Both the courts below have recorded their concurrent findings on the factual aspect of the matter which do not require any interference in this Second Appeal. Thus, the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and decree dated 30.08.2003 passed by Additional District Judge/FTC 1st, Haridwar and judgment and decree dated 27.11.2000 passed by Civil Judge (S.D.), Roorkee, are hereby confirmed. (B.C. Kandpal, J.) SP