# Amar Deo Ojha & Anr v. Shri Krishna Ojha

- **Citation:** (2021) 1 ILRA 662
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Case number:** Second Appeal No. 827 of 2016
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-deo-ojha-anr-v-shri-krishna-ojha-45132
- **Pages:** 5

## Headnote

Civil Law - Specific Relief Act (47 of
1963)-
Section
38
-
Permanent
injunction
-
Cause
of
action
-
defendants
denied
ownership
of
plaintiffs over land in question &
plaintiffs were apprehending that the
defendants might encroach upon the
land, as such a cause of action was
available to the plaintiff & Court
rightly entertained
suit
-
finding
regarding ownership - To arrive at a
finding regarding ownership of land
as claimed by plaintiff - Courts below
should have independently applied
their minds & should have arrived at
an independent finding irrespective of
the finding arrived in another suit
& paper filed in that suit in which the
defendants were not party - Amin's
Report - there was a door of the
defendant no. 2 which opened on the
southern side of his house, same was
shown as a door in the Amin's report
but the existence of that door not
dealt with by the courts below -
finding ought to have been arrived at
as to what would be effect of the door
opening in the southern side of the
house of the defendant no. 2 - Both
courts committed error in holding
plaintiff to be owner of land - Decree
liable to be set aside and matter
remanded to Trial Court. (Para 10, 11,
12)

Partly allowed. (E-4)

## Text

662 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, the writ petition being devoid of
merit is dismissed at the admission stage
itself.
----------
(2021)01ILR A662
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 827 of 2016

Amar Deo Ojha & Anr. ...Appellants
Versus
Shri Krishna Ojha ...Respondent

Counsel for the Apellants:
Sri Chandrakesh Rai

Counsel for the Respondents:
Sri Ishwar Kumar Upadhyay, Sri Satya Priya
Upadhyay, Sri Vineet Kumar Singh, Sri H.N.
Singh

Civil Law - Specific Relief Act (47 of
1963)-
Section
38
-
Permanent
injunction
-
Cause
of
action
-
defendants
denied
ownership
of
plaintiffs over land in question &
plaintiffs were apprehending that the
defendants might encroach upon the
land, as such a cause of action was
available to the plaintiff & Court
rightly entertained
suit
-
finding
regarding ownership - To arrive at a
finding regarding ownership of land
as claimed by plaintiff - Courts below
should have independently applied
their minds & should have arrived at
an independent finding irrespective of
the finding arrived in another suit
& paper filed in that suit in which the
defendants were not party - Amin's
Report - there was a door of the
defendant no. 2 which opened on the
southern side of his house, same was
shown as a door in the Amin's report
but the existence of that door not
dealt with by the courts below -
finding ought to have been arrived at
as to what would be effect of the door
opening in the southern side of the
house of the defendant no. 2 - Both
courts committed error in holding
plaintiff to be owner of land - Decree
liable to be set aside and matter
remanded to Trial Court. (Para 10, 11,
12)

Partly allowed. (E-4)

(Delivered by Hon'ble Siddhartha Varma, J.)

1. This second appeal has been filed
against the judgement and decree dated
13.5.2016 passed by the District Judge,
Ballia, in Civil Appeal No. 31 of 2016
which had affirmed the judgement and
decree dated 14.3.2016 passed by the Civil
Judge (J.D.) Ballia in Original Suit No. 424
of 2007.

2. The plaintiff had filed a suit for the
relief of permanent injunction stating that
the defendant (appellant here) may be
injuncted
from
interfering
with
the
possession of the plaintiff over the land
marked by nos. 1-4-5-6-7-1 and by nos. 68-9-10 in the plaint map. The case of the
plaintiff had been that the area marked by
numbers 1-4-5-6-7-1 had formed a part of
plot no. 48 which was the plaintiff's sehan
land and he had inherited the same from his
grand-father, namely, Jamuna Ojha.

3. To bolster his case, the plaintiff had
taken support of the papers which were
filed in another suit being Suit no. 274 of
1993 which was filed by Vimlesh Chaubey,
a person who was not a party to the suit of
the plaintiff. Suit No. 274 of 1993 was
1 All. Amar Deo Ojha & Anr. Vs. Shri Krishna Ojha
663
dismissed by a judgement and decree dated
21.1.1995. The plaintiff of the suit from
which the instant appeal has arisen had
alleged that on 30.9.2007 the defendants in
the instant case had threatened that they
would take over possession over the land
numbered as 1-4-5-6-7-1 in the plaint map
and would also stop the water from flowing
from the nali which was running on the
land numbered as 6-8-9-10 in the plaint
map. The defendants, the appellant here,
filed their written statement denying the
rights and title of the plaintiff over the land
in question and stated that since their
houses opened southwards into the land
numbered as 6-8-9-10 and since they had a
Chabutara over it the plaintiffs could not
have any right over the land in question.
Upon filing of the suit, an Amin of the
Civil Court went on the spot and submitted
his report alongwith a map on 28.11.2007.
The report was numbered as 19(ga)(2) and
the map was numbered as 20(ga) (2). For
deciding the suit the Trial Court had framed
as many as nine issues.

4. Issue no. 1 was to the effect as to
whether the land which was claimed by
the plaintiff to be his own land was his or
not. Upon giving a finding in favour of the
plaintiff in the affirmative the suit was
decreed. The defendant filed a first appeal
being First Appeal No. 31 of 2016 in
which only one point of determination was
drawn and that was also to the effect as to
whether the plaintiff was the owner in
possession over the land in question. The
First Appeal was, however, dismissed on
13.5.2016. The instant second appeal
when
was
filed
was
admitted
on
22.12.2016 on the questions of law as had
been framed in the memo of appeal. There
were 10 questions of law which were
framed and the same are being reproduced
here as under:-

1. Whether the suit for permanent
injunction filed by the plaintiff-respondent
without there being any cause of action, is
maintainable?

2. Whether both the courts below
committed manifest error of law in
decreeing the suit and passing impugned
orders by treating the land the land in
dispute to be part of land of Shikmi No. 48
without ascertaining correct location and
area of Shikmi No. 48?

3. Whether the plaintiff-respondent
who stand on his own leg, his suit cannot
be decreed on the weakness of defendantsappellants?

4. Whether the paper filed in the suit
No. 274 of 1993 in which the defendantsappellants were not party, can be relied in
decreeing the suit?

5. Whether the courts-below are
justified in decreeing the suit of the
plaintiff-respondent without ascertaining
the location of Khasra No. 48 where area is
given in the Khasra?

6. Whether the courts-below were
justified in law in decreeing the suit of the
plaintiff without establishing his case by
any cogent documents/evidence regarding
recording the name of Bahuriya Piyari
Kunwari even in Khasra on record?

7. Whether both the courts below have
committed manifest error of law in not
deciding the objections filed by the
defendants-appellants against the Aminreport and whether without deciding said
objection, both the courts below were
justified in law in passing impugned
orders?

8. Whether the impugned orders
passed by the courts-below are against the
actual spot position, if yest then on what
basis the impugned orders have been
passed by the courts below?

9. Whether the findings recorded by
the courts below that the disputed land is
664 INDIAN LAW REPORTS ALLAHABAD SERIES
part of land of Shikmi No. 48, is based on
any cogent evidence and document, if not,
then on what basis the impugned orders
have been passed by the courts below?

10. Whether the impugned orders
passed by the courts below are sustainable
in the eyes of law?

5. When the case was heard finally
and the judgement was reserved the
counsel appearing for the Appellants and
the Respondent had submitted their written
submissions. The Appellant while arguing
the appeal mainly argued on the substantial
questions of law numbered as 1, 4 and 7.
He submitted that when there was only an
apprehension in the mind of the plaintiffs
that the disputed land would be encroached
upon by the defendants and that thereafter
the plaintiffs would be deprived from using
the same then there was no cause of action
yet. With regard to the records of the
Original Suit No. 274 upon which the
plaintiff had depended and which had been
dealt with by the two courts below the
learned counsel appearing for the Appellant
submitted that the suit was filed by a
person who was not a party in the instant
suit against the plaintiff of the instant suit.
The defendant/Appellant had tried to get
himself impleaded in the Suit No. 272 of
1993 but his impleadment application was
rejected. Therefore any reliance on the
pleadings of Suit No. 272 of 1993 which
the Court has done while deciding the
instant suit from which the instant second
appeal arose was an illegality committed by
the court's below and which required to be
undone.

6. Learned counsel for the Appellant
submitted that to arrive at a finding
regarding ownership of the land claimed
by the plaintiff, the Trial Court as also
the
Appellate
Court
should
have
independently applied their minds and
should have arrived at an independent
finding irrespective of the finding arrived
in the Original Suit No. 274 of 1993.
Learned
counsel
for
the
Appellant
submitted that any finding in the Suit No.
272 of 1993 could not have been used by
the Trial Court while deciding the suit
from which the instant second appeal
arose as the defendants were never a
party in that suit. Learned counsel for the
Appellant further submitted that if the
commission report dated 28.11.2007 is
seen then it appears that the report had
given an opinion of the Amin with regard
to the Chabutara constructed on the plot
in dispute and no effort was made by the
Court to come to an independent finding
as to when the Chabutara was exactly
built. Learned counsel for the Appellant
submitted that the defendant had raised
an objection with regard to the findings in
the Amin report but they were never
considered.
Learned
counsel
further
submitted that if the map attached to the
report was seen it would become evident
that Dinanath, the defendant no. 2 ( the
appellant no. 2) in the instant second
appeal had only one ingress and egress on
the southern side which opened in the
plot
in
question.
Learned
counsel
submitted
that
with
regard
to
the
Chabutara which was shown in Map
20(ga)(2) of the Amin report, no finding
whatsoever was arrived at by the Courts
below. Learned counsel for the appellant
further submitted that in the Amin report
there was a clear finding that the Nali, to
begin with, was an open Nali and was
also a pakka one and it went westward. It
also said that even though to begin with it
was open but as it reached its destination
it had gone underground. He submitted
that with regard to this opinion of the
commissioner no finding was arrived at.
1 All. Amar Deo Ojha & Anr. Vs. Shri Krishna Ojha
665

7. In reply, the learned counsel for the
respondents plaintiff, however, submitted
that in the written statement the defendant
had denied the owner ship of the plaintiffs
over the land in question then a cause of
action was evident. Learned counsel
appearing for the Respondent submitted
that when the pleadings between the parties
are exchanged and it is evident to the Court
that there is a cause of action available then
it had not to be proved by the plaintiff that
the apprehension was wrong.

8. In the instant case when the
defendant had denied the title of the plaintiff
over the land in question and the plaintiffs
were apprehending that the defendants might
encroach upon the land then there was
definitely a cause of action. Learned counsel
further submitted that when the judgement
passed in the Suit No. 274 of 1993 had given
its seal of approval to the written statement
filed by the plaintiff in that suit then the
written statement could always have been
used in the instant suit. Still further learned
counsel
for
the
plaintiff
respondents
submitted that the finding given in the Amin
report that the Chabutara was made after the
filing of the suit gets credence from the fact
that in the map attached with the written
statement there was no Chabutara made.

9

Learned
counsel
for
the
Plaintiffs/Respondents further submitted
that the instant Second Appeal was filed
against judgments which had concurrently
being passed in favour of the plaintiffs and,
therefore, no interference be made in the
instant second appeal. He submitted that no
substantial question of law at all arose and
the instant second appeal, therefore, be
dismissed.

10. Having heard the learned counsel
for the appellant and the learned counsel
for the respondents, I am of the view that
when the defendants had denied the title
over the land in question in their written
statement then definitely a cause of action
was available to the plaintiff and the Court
rightly entertained his suit. So far as the
question of reliance over the documents
filed in Suit No. 274 of 1993 is concerned,
I find that the Defendants/Appellants was
not a party to that suit. He had not admitted
that the documents filed by the respondents
in the instant second appeal were correctly
filed in the Suit No. 274 of 1993. The
impleadment
application
which
the
Defendants had filed in Original Suit No.
274 of 1993 had been rejected. If the court
wanted to give a finding with regard to the
land over which the Plaintiff was claiming
title and possession then the courts below
should have given a finding independent of
any finding arrived at in Suit No. 274 of
1993.

11. So far as the question with regard to
the reliance on the Amin report and map is
concerned, I find that since there was no
Chabutara made in the map attached in the
written statement, it can be safely concluded
that the Chabutara was built during the
pendency of the suit. However, since there was
a door of the defendant no. 2 which opened on
the southern side of the house of the defendant
no. 2 and which has been shown as a door in
the map and the Amin's report and since the
existence of that door has not been dealt with
by the courts below, I feel that the court' below
fell
in
error while dealing with
the
Commission Report. A finding ought to have
been arrived at as to what would be effect of
the door opening in the southern side of the
house of the defendant no. 2. There is also no
finding in both the judgement as to what
would be the result of the fact that the Nali in
front of the house of the defendant initially
was an open one and then had gone
666 INDIAN LAW REPORTS ALLAHABAD SERIES
underground as had been given in the Amin's
report. Since there was a wrong reliance on the
papers filed in the Suit No. 274 of 1993 and
since the Amin's report and map had not been
considered in their right perspective, I find that
the courts below fell in error in coming to a
conclusion that the land in question belonged
to the plaintiff. Ends of justice would be
served if the Judgement and Decree of the
Courts below dated 14.3.2016 and 13.5.2016
of the Trial Court and the First Appellate
Court respectively are set aside and the matter
is remanded back to the Trial Court for a
decision afresh with regard to the ownership
after considering the Amin's report in its right
perspective and after giving a finding
independent of the papers/pleadings which
related to the Suit No. 274 of 1993. The matter
is,therefore, remanded back to the Trial Court.

12. The substantial questions no. 1, 4 and
7 which were argued by the Appellants
counsel are accordingly answered. The other
question need not be answered.

13. The second appeal is partly allowed.
----------
(2021)01ILR A666
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Special Appeal (D) No. 1008 of 2020

Om Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra Srivastava, Sri Vishnu
Prakash
Counsel for the Respondents:
C.S.C., Sri Shishir Prakash

A.
Service
law
-
Compassionate
Appointment - Long delay in seeking
appointment
-
Effect
-
Held,
Compassionate appointment cannot be
treated as a bounty and is to be given to
the needy if the said person is facing
hardship - There cannot be inherent right
to compassionate appointment but rather,
it is a right to provide a succor to a needy
family - Appellant has already survived for
more than nine years after the death of
his mother and as such, he had no
financial constraint. (Para 12 and 19)
Special Appeal dismissed. (E-1)
Cases relied on :-
1. Umesh Kumar Nagpal Vs St. of Har. ,
(1994) 4 SCC 138
2. U.O.I. Vs Bhagwan , (1995) 6 SCC 436
3. Haryana State Electricity Board Vs
Naresh Tanwar, (1996) 8 SCC 23
4. St. of U.P. & ors.. Vs Paras Nath, AIR
1998 SC 2612
5. Director of Education (Secondary) & anr.
Vs Pushpendra Kumar & ors., AIR 1998 SC
2230
6. S. Mohan Vs Government of Tamil Nadu
& anr., 1999 (I) LLJ 539
7. SBI Vs Anju Jain, (2008) 8 SCC 475
8. P.N.B. & ors.Vs Ashwini Kumar Taneja
(2004) 7 SCC 265
9. General Manager (D&PB) & ors. Vs Kunti
Tiwari & anr. (2004) 7 SCC 271

(Delivered by Hon'ble Pritinker
Diwaker, J.)

(04.11.2020)

Order
on
Civil
Misc.
Delay
Condonation Application