# B.N. Tripathi & Ors v. State of U.P

- **Citation:** (2026) 4 ILRA 2086
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-09
- **Case number:** First Appeal No. 10 of 2022
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-n-tripathi-ors-v-state-of-u-p-54906
- **Pages:** 18

## Text

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2086 INDIAN LAW REPORTS ALLAHABAD SERIES
(2026) 4 ILRA 2086
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 10 of 2022

B.N. Tripathi & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Issues for Consideration
(i) Whether the Kanpur Development Authority was justified in withholding possession of the leased plot
despite execution and registration of a 999-year lease deed and receipt of the entire lease premium?
(ii) Whether the plaintiffs proved that the leased plot had been obtained for establishment of an industrial unit
and that they suffered loss on account of non-delivery of possession?
(iii) Whether the Trial Court rightly dismissed the suit by holding that the plaintiffs had failed to prove their
case despite the defendants having led no evidence?
(iv) Whether the plaintiffs were entitled to mandatory injunction for delivery of possession, damages for loss
of business profits, damages on account of escalation in project cost, interest and exemplary costs?

Headnotes
Lease-999-year lease-Industrial plot-Entire premium paid-Registered lease deed executedPossession withheld without cancellation of lease or forfeiture-Mandatory injunction.

HELD: Upon execution and registration of the lease deed and payment of the entire premium, the plaintiffs
acquired enforceable leasehold rights over the suit property. The defendants neither pleaded nor proved
cancellation of the lease, forfeiture, resumption or creation of any third-party rights. Mere withholding of
possession for decades without any legal justification constituted breach of contractual and statutory
obligations. The plaintiffs were, therefore, entitled to a decree directing delivery of vacant possession of the
leased plot. [Paras 32 to 41]

Evidence-Registered lease deed-Terms reduced into writing-Contrary plea in written
statement unsupported by evidence-Effect.

HELD: The registered lease deed constituted the best evidence of the contractual relationship between the
parties and expressly acknowledged payment of the entire lease premium. The plea that the plaintiffs had
failed to pay the entire consideration, in the absence of any documentary or oral evidence, could not override
the recitals contained in the registered instrument. [Paras 32 to 36]

Evidence-Burden of proof-Statutory authority withholding best evidence-Failure to enter
witness box-Adverse inference.

HELD: Although the defendants pleaded that possession had already been delivered, they neither produced
the possession memo nor examined any officer conversant with the facts. A party withholding the best
available evidence and abstaining from entering the witness box invites an adverse inference under Section
114 Illustration (g) of the Evidence Act that the defence set up is incorrect. Mere pleadings without proof do
not discharge the burden cast upon the defendants. [Paras 37 to 40]
4 All. B.N. Tripathi & Ors. Vs. State of U.P.
2087
Civil Procedure-Appreciation of evidence-Trial Court ignoring admitted documents and
material evidence-Perverse findings.

HELD: The Trial Court ignored the registered lease deed, previous litigation between the parties,
correspondence exchanged with the Development Authority and other undisputed documentary evidence. The
findings that the plaintiffs failed to establish the terms of allotment, demand for possession and entitlement to
relief were contrary to the record and suffered from perversity, warranting interference in appeal. [Paras 43 to
45]

Lease-Industrial plot-Failure to deliver possession-Loss of business opportunity-Entitlement
to damages.

HELD: The lease itself established that the plot had been allotted for setting up an industrial unit. The
plaintiffs proved that they had obtained registration from the Industries Department and prepared a project
report indicating the anticipated profitability of the proposed factory. Since establishment of the industry
became impossible solely due to the defendants' failure to hand over possession, the plaintiffs became entitled
to damages for loss of business profits. [Paras 46 to 56]

Damages-Breach of lease-Loss of anticipated profits-Assessment.

HELD: Exact computation of future business profits is not always possible where a commercial venture is
prevented from commencing because of breach by the opposite party. Once the intended business, the
wrongful conduct of the defendants and the probable income stood established, the Court was justified in
awarding compensation on a reasonable estimate based upon the project report and surrounding
circumstances. [Paras 47 to 56]

Damages-Delay in delivery of possession-Escalation in project cost due to inflationCompensation.

HELD: The prolonged deprivation of possession resulted in substantial escalation in the cost of establishing
the proposed industrial unit. The plaintiffs were, therefore, entitled to compensation towards increased project
cost attributable to inflation and the delay occasioned by the defendants' unlawful conduct. [Paras 55 and 56]

Development Authorities-Statutory obligations-Arbitrary withholding of possession despite
receipt of entire consideration-Public accountability.

HELD: A statutory development authority is expected to act fairly and reasonably. Retaining possession of an
allotted plot for decades after execution of a registered lease deed and receipt of the entire premium, without
cancelling the lease or assigning any lawful reason, amounts to arbitrary exercise of power and defeats the
legitimate expectations of citizens. Such conduct renders the authority liable for consequential damages.
[Paras 57 to 59]

Civil Procedure-Exemplary costs-Statutory authority compelling unnecessary litigation.

HELD: Where a public authority compels citizens to engage in prolonged litigation despite their clear legal
entitlement, award of exemplary costs is justified to discourage arbitrary conduct and compensate the
successful litigants for avoidable hardship. [Paras 57 to 61]

Lease-Mandatory injunction-Damages-Interest.

HELD: The plaintiffs were entitled to delivery of possession of the leased plot, damages for loss of business
profits from 01.07.1987 till delivery of possession, Rs.5,00,000/- towards escalation in project cost, pendente
2088 INDIAN LAW REPORTS ALLAHABAD SERIES
lite and future interest at 6% per annum, delivery of the sanctioned building plan and exemplary costs of
Rs.2,00,000/-. [Paras 60 and 61]

Appeal allowed. Judgment and decree of the Trial Court set aside. Suit decreed. (E-14)

Case Law Cited
Iqbal Basith and Others v. N. Subbalakshmi and Others, (2021) 2 SCC 718 (Three-Judge Bench)
- cited; Maula Bux v. Union of India, (1969) 2 SCC 554 - relied upon; M/s A.T. Brij Paul Singh
and Others v. State of Gujarat, (1984) 4 SCC 59 - relied upon; Bhagwati Prasad Jhunjhunwala
and Others v. UCO Bank and Another, 2023 SCC OnLine Cal 359 (Division Bench, Calcutta High
Court) - relied upon; Iswar Bhai C. Patel v. Harihar Behera, (1999) 3 SCC 457 - relied upon;
Vidyadhar v. Manikrao and Another, (1999) 3 SCC 573-relied upon.

List of Acts / Statutes/Books
Code of Civil Procedure, 1908; Indian Evidence Act, 1872; Indian Contract Act, 1872; Transfer of Property Act,
1882.

List of Keywords
Industrial plot; Kanpur Development Authority; Mandatory injunction; Delivery of possession; Breach of lease;
Loss of business profits; Escalation in project cost; Adverse inference; Burden of proof; Registered lease deed;
Exemplary costs; Public accountability; Statutory authority.

Case Arising From
Judgment and decree dated 20.04.2016 passed by the 2nd Additional Judge, Small Causes Court,
Kanpur Nagar in Original Suit No. 243 of 2009, B.N. Tripathi and Others v. State of U.P. and
Another

Appearance for Parties
For the Revisionist: Sri Anuj Agarwal; Sri B.N. Tripathi (in person); Ms. Shreya Gupta
For the Respondents: Sri Raj Nath Pandey and Sri Rajesh Kumar Singh

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal has been filed by the plaintiff under Section 96 CPC against the
impugned judgment and decree dated 20.4.2016 passed by the 2nd Additional Judge Small Cause
Court, Kanpur Nagar in O.S. no. 243 of 2009 B.N. Tripathi and others vs. State of U.P. and
another, whereby the plaintiffs suit for the relief of mandatory injunction directing the defendants
to deliver the possession of the disputed plot and award of damages of ₹ 41,16,800/- with interest
@18% p.a. has been dismissed.

Plaint case

2. The plaintiffs filed O.S. no. 243 of 2009 against the defendant no.1 State of Uttar
Pradesh and defendant no. 2 Kanpur Development Authority (KDA) with the averments that they
are the joint lessees of plot No. 56, Block 'A', Scheme 39, Jajmau, Kanpur, hereinafter referred to
as the disputed plot, admeasuring 2,222 square yards by virtue of lease deed dated 3.12.1984,
which was executed by the defendant KDA. It was further averred that the disputed plot was leased
to plaintiffs for a period of 999 years commencing from 3.12.1984,for a consideration of the
premium reserved under the aforesaid lease deed of ₹ 22,220/-, which was paid by the plaintiffs at
4 All. B.N. Tripathi & Ors. Vs. State of U.P.
2089
the time of execution of the above lease deed, the boundaries of which were duly described in the
lease deed and at the foot of the plaint. It was further averred that the above lease deed was
registered in the office of sub-Registrar Kanpur at Bahi no.1, Book 562/611 at pages 144/288 and
301 on 07.12.1984.

3. It was further averred by the plaintiffs that before the execution of the lease deed, an
unwarranted demand of interest @ 15% per annum was made by the KDA from the plaintiffs, and
under protest the payment of interest so illegally demanded, which amounted to ₹ 44,420.22 was
paid by the plaintiffs to the defendant KDA, and thereafter, the plaintiffs filed O.S.no. 335 of 1985
challenging the legality of the above demand of interest, which was decreed by judgment and
decree dated 15.5.1994 in favour of the plaintiffs, thus, the legal interest was refunded to the
plaintiffs.

4. It was further averred that for the purpose of harassing the plaintiffs, the defendant KDA
initially demanded uncalled for, illegal and unwarranted interest and the possession of the disputed
plot was not handed to the plaintiffs under the garb of above illegal demand of interest and
whenever the plaintiffs demanded possession of the disputed plot from the defendant KDA, the
frivolous ground of the pendency of the above suit no. 335 of 1985 was taken by it, which was
untenable.

5. It was further averred that in the meantime, the plaintiffs moved the defendant KDA for
sanction of building plan which was sanctioned on 27.2.1998 but since the possession of the
disputed plot was not delivered to the plaintiffs as such, it was impossible for them to raise
construction on it, hence the validity of the building plan needs to be extended to make it effective
after the delivery of possession of the plot.

6. It was further averred that the plaintiffs constantly wrote letters to the defendant KDA
asking for delivery of possession but the possession was not delivered. The above letters were
written on 21.7.1985, 2.6.1990, 3.6.1990, 9.12.1990, 25.9.2002, 15.11.2002, 29.1.2003, 28.3.2003,
9.10.2003, 27.10.2003, 19.12.2003, 11.3.2004, 17.5.2004, 5.7.2004, 16.10.2004 and 13.1.2005. It
was further averred that finally the plaintiffs served a legal notice dated 17.1.2005 on the defendant
KDA demanding possession of the disputed plot along with damages at the rate of ₹ 1 lakh per
annum within a period of 15 days from the date of receipt of the notice but despite service of notice
on 18.1.2005, the defendant failed to deliver the possession.

7. It was specifically averred by the plaintiffs that the disputed plot was purchased for
doing some trade or business on it, for the livelihood of the plaintiffs and their family members, but
due to non-delivery of the disputed plot, the aspirations and dreams of the plaintiffs were
completely crushed by the high-handed, illegal and arbitrary action of the defendants.

8. It was further averred that when the possession of the disputed plot was not delivered,
the plaintiffs filed a writ petition no. 425 of 2006 before this Court, which was disposed by order
dated 9.5.2006 with the direction that the plaintiffs can approach the civil court for the relief of
delivery of possession of the disputed plot, and after the above order of this Court, the defendant
KDA was approached by the plaintiffs but inspite of giving assurance by the senior officials of the
2090 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant, the possession of the disputed plot was not delivered to the plaintiffs, who are senior
citizens aged about 70 years, who are at the fag end of their lives. It was further averred that the
plaintiffs invested their hard earned money in the disputed plot but its possession was
deliberately,without any reason,was not handed to the plaintiffs and as such, by the arbitrary and
illegal action of the defendants, the plaintiffs have been deprived of reaping the fruits of the
disputed plot, which was still lying vacant. It was further averred that since the possession of the
disputed plot was never handed to the plaintiffs, the plaintiffs could not use it or acquire its
possession.

9. It was further averred that in the year 1992, the plaintiffs even obtained registration of
the business concern from Directorate of Industries, U.P. in the name of Narayan Krishi Yantra
Udyog and according to the project report, the plaintiffs were supposed to earn profit of ₹ 13,700/-
per month from the above business, but since the possession of the disputed plot was not handed to
the plaintiffs, they failed to establish their factory, which was the basic object of acquiring the
disputed plot, due to which the plaintiffs have suffered financial loss, because the capital cost of
establishing the factory has increased and due to this, the plaintiffs have suffered a loss of ₹ 5
lakhs.

10. It was further averred that the plaintiffs have assessed the loss on a flat rate of ₹
13,700/- per month, which amounts to ₹ 1,64,400/- per annum and till the end of the month of
December, 2006 the total loss was ₹ 36,16,800/- which was due to the non-delivery of possession
of the disputed plot and if, amount the loss of increased capital cost of ₹ 5 lakhs was added, then
the plaintiffs have suffered a total loss of ₹ 41,16,800/- to which they are entitled along with
interest @ 18% per annum from the defendants.

11. In the above backdrop, the plaintiffs claimed the following reliefs :-

 (A)A decree of mandatory injunction, thereby directing the defendant to deliver the
possession of plot No. 56, Block 'A', Scheme 39, Jajmau, Kanpur, admeasuring 2,222 square yards,
fully bounded at the foot of the plaint, to the plaintiffs and also deliver its sanction letter regarding
the sanctioned building plan in respect of that plot.

 (B)Money decree be passed for a sum of ₹ 41,16,800/- together with up-to-date interest
@18% per annum in favour of the plaintiffs and against the defendant.

 (C)A decree be passed declaring that the building plan in respect of the aforesaid plot
sanctioned by KDA no. 214/489/Bhau/92-93 dated 27.2.1998 shall be effective and operative after
delivery of possession of that plot by KDA to the plaintiff.

 (D)Cost of the suit.

 (E)Any other relief which this Hon'ble Court may deem fit and proper in the facts and
circumstances of the present case.

Written Statement on behalf of defendant Kanpur Development Authority(KDA)
4 All. B.N. Tripathi & Ors. Vs. State of U.P.
2091
12. The defendant denied the plaint averments, which were evasive and not specific. It was
averred that the answering defendant was not the least concerned with the object of the purchase of
the disputed plot. The plaintiffs claim of damages was vague and imaginary. It was further averred
that no cause of action has accrued to the plaintiffs to file the present suit.

13. It was specifically averred that the possession of the disputed plot has been given to the
plaintiffs, as per rules of the KDA, on payment of entire dues, which were payable from time to
time. The plaintiffs deliberately failed to make payment, as demanded by the answering defendant
and instead, entered into uncalled for litigation, only to harass the officials of the KDA. It was
further averred that the plaintiffs are fond of litigation and it is for this reason, earlier suit no. 335
of 1985 and the Writ before the High Court was filed. It was further averred that the instant suit
was filed on whims, which was barred under Section 34 and 41(h) of the Specific Relief Act.

Documentary evidence of the parties

14. The plaintiffs filed original lease deed dated 3.12.1984 executed by KDA in their
favour, certified copy of the judgment dated 17.5.1994 passed in O.S. no. 335 of 1985,copy of the
letters written to the KDA,copy of the legal notice dated 17.1.2005 given to the KDA, certificate of
Directorate of Industries Uttar Pradesh, project report,etc.

15. The defendants have not filed any documentary evidence.

Issues framed by the trial court

16. No written statement was filed by the defendant State of U.P. On the basis of the
pleadings of the plaintiffs and the defendant KDA, the following issues were framed :-

 (i)Whether without any legal and reasonable cause, the defendant failed to hand over the
possession of the disputed plot No. 56, Block 'A', Scheme 39, Jajmau to the plaintiffs? If so, its
effect?

 (ii)Whether the suit has been less valued?

 (iii)Whether the court fees paid is insufficient?

 (iv)Whether the plaintiff 's suit is barred by Section 34 and Section 41(h) of the Specific
Relief Act ?

 (v)Whether the plaintiffs are entitled to get any relief ?

Oral evidence adduced by the parties

17. The plaintiff B.N.Tripathi examined himself as PW-1, who in his examination-in-chief
proved the plaint averments. He deposed that the lease deed dated 3.12.1984 was executed in
favour of the plaintiffs by the power-of-attorney holder of Kanpur Development Authority(KDA),
2092 INDIAN LAW REPORTS ALLAHABAD SERIES
K.N.Bhalla, and thereafter, the lease deed was got registered. He further deposed that the entire
premium of ₹ 22,220/- was paid by the plaintiffs to the KDA, but, an illegal demand of interest @
15% per annum was made by the KDA, which was fulfilled under protest by depositing an amount
of ₹44,420.22 as interest with the KDA, which was later on challenged by filing O.S. no. 335 of
1985 against the KDA, which was decreed in favour of plaintiffs on 15.5.1994. He further deposed
that inspite of fulfilling the illegal demand of KDA, the plaintiffs were not handed the possession of
the disputed plot on the ground that the above suit no. 335 of 1985 was pending. He further
deposed that even after the decision of the suit no. 335 of 1985, the plaintiffs were not handed the
possession of the disputed plot, regarding which several letters were written to the KDA by
registered post and a representation was also made, but to no effect. The plaintiff has proved the
above letters sent by registered post to the defendant KDA from time to time. The plaintiff has
further proved the legal notice given by his counsel Yatindra Shukla dated 17.1.2005 through
registered post to the KDA. The plaintiff further deposed that they obtained the disputed plot for
doing business on it, in order to sustain their livelihood but they were not handed its possession,
due to which they have suffered a loss of ₹ 41,16,800/-,for the recovery of which they have filed
the suit, along with interest @ 18% per annum. He further deposed that the plaintiffs have also filed
a writ petition no. 25403 of 2006 before this Court, in which by order dated 9.5.2006 it was ordered
that for getting possession, the plaintiffs may file a suit before the civil court. He further deposed
that after the passing of the above order by this Court, the plaintiffs met senior officers of KDA and
requested them to give possession of the disputed plot, on which they assured the plaintiffs, which
proved to be false, and as such they filed the instant suit on 9.2.2007. It was further deposed that
the deponent was more than 80 years old and the plaintiff no. 2 died on 13.9.2011. He further
deposed that in the year 1992 the plaintiffs have got registered the intended business in the name
and style of Narayan Krishi Yantra Udyog, with the Directorate of Industries, Government of U.P.
and the project report was also prepared, according to which the plaintiffs were expecting to earn
monthly income of ₹ 13,700/-, from which they were deprived. He further deposed that the cost of
setting business has also increased due to inflation by ₹ 5 lakhs. He further deposed that the
plaintiffs are the lease holders of the disputed plot and they are entitled to its physical possession
and are also entitled to get damages with interest from the defendants.

18. PW-1 in cross-examination deposed that the disputed plot was purchased in auction
from KDA in the year 1967. His bid was highest @ ₹ 10/- per square yard, among the persons, who
participated in the auction. In all 16 plots were auctioned.

19. The defendants neither adduced any documentary or oral evidence nor any arguments
were submitted on their behalf, before the trial court.

Reasoning of the Trial Court

 (1) The plaintiffs have nowhere mentioned the duration in which, after the execution of
the lease deed, they were supposed to get the possession of the disputed plot.

 (2) The plaintiffs were supposed to disclose what action was taken by them for getting the
possession of the disputed plot and in response to that, what action was taken by the KDA.
4 All. B.N. Tripathi & Ors. Vs. State of U.P.
2093
 (3) After the execution of the lease deed in their favour, the plaintiffs were supposed to
disclose what were the other terms and conditions of the KDA.

 (4) The plaintiffs have also not disclosed why the possession of the disputed plot was not
handed to them by the KDA.

 (5) If the possession of the disputed plot was not handed to the plaintiffs, then they should
have complained to the KDA.

 (6) The plaintiffs have failed to disclose what reply was given by the KDA to the letters
sent to it by the plaintiffs.This fact was also required to be proved by the plaintiffs by their oral and
documentary evidence.

 (7) The plaintiffs have also failed to submit any document to prove that after the
execution of lease deed, how the payment was to be effected.

 (8) The plaintiffs has only filed attested copy of the lease deed, but have not filed any
terms and conditions issued by the KDA.

 (9) The plaintiffs have concealed and suppressed material facts from the court,the burden
was upon the plaintiffs to prove the above facts, which they have utterly failed to discharge.

20. In view of the above reasons, issue no.(i) was decided against the plaintiffs. Issue no.
(ii) and (iii) were previously by order dated 4.7.2014 decided ex-parte in favour of the plaintiffs.
Issue no. (iv) was also decided in favour of the plaintiffs, against the defendants, because it was not
pressed by the defendants. Since issue no.(i) was decided against the plaintiffs, as such, in the
opinion of the trial court, the plaintiffs were not entitled to get any relief, because they failed to
prove their case, hence, the plaintiffs suit was dismissed with costs, aggrieved against which, the
plaintiffs have filed the instant appeal under Section 96 CPC.

Submissions of the learned counsel of the parties

21. Ms.Shreya Gupta learned counsel for the plaintiff appellant submitted that the disputed
plot was purchased in auction by the plaintiffs way back in the year 1967 and the plaintiffs
deposited the whole amount of consideration of the lease amounting to ₹ 22,220/- with the
defendant KDA, but still the KDA demanded interest at the rate of 15%, which was illegal, but still
the plaintiffs paid the further amount of ₹ 44,420.22 with the KDA under protest and then filed
O.S. No. 335 of 1985 for recovery of the amount paid under protest, which was decreed on
15.5.1994 in favour of the plaintiffs, and it was held that the above demand of additional amount of
₹ 44,420.22 was illegal.

22. Learned counsel further submitted that the lease deed was executed by the KDA after
obtaining the full consideration of ₹ 22,220/-from the plaintiffs, which is recorded in the lease
deed. It was further submitted that since the above demand of the KDA of ₹ 44,420.22 was found
2094 INDIAN LAW REPORTS ALLAHABAD SERIES
to be illegal, and thereafter, no additional demand was ever made by the KDA from the plaintiffs,
as such, no money was due from the plaintiffs to the KDA.

23. Learned counsel further submits that the lease deed itself contains all the terms and
conditions, but it nowhere mentions that when the possession of the disputed land was to be handed
to the plaintiffs. The lease deed is silent on this aspect. Learned counsel further submits that as per
the written statement of the KDA, the possession of the disputed plot was handed to the plaintiffs,
but no documentary or oral evidence was adduced to prove the above averment. It was further
submitted that the plaintiffs always demanded the possession of the disputed plot after the lease
deed was executed in their favour on 3.12.19 84 by the KDA, but the possession of the disputed
plot was never handed to the plaintiffs.

24. It was further submitted that from the year 1985 till the filing of the suit in the year
2007, the plaintiff continuously demanded possession of the disputed plot from the KDA by writing
numerous letters to it, but there was no response from the other side. She further submitted that the
plaintiffs also filed a writ petition before the High Court in the year 2006, which was disposed with
the observation that the plaintiffs may file suit before the civil court for getting possession of the
disputed plot.

25. She further submitted that the disputed plot was taken on lease for setting up business
on it, for sustaining the livelihood of the plaintiffs and their family members from the earning of
the business, which was supposed to be established on the disputed plot. She further submitted that
in the year 1992 the proposed business in the name and style of 'Narayan Krishi Yantra Udyog' was
got registered with the Directorate of Industries, State of Uttar Pradesh and the project report was
also got prepared, according to which, the plaintiffs were supposed to earn monthly profit of ₹
13,700/- after the commencement of the business, but it never materialised ,because the possession
of the disputed plot was never handed to the plaintiffs. She further submitted that all the hopes and
aspirations of the plaintiffs were crushed by the illegal, arbitrary and whimsical acts of the KDA,
which without any reason, failed to hand over the possession of the disputed leasehold plot to the
plaintiffs.

26. She further submitted that the plaintiffs have proved their case on the basis of oral and
documentary evidence, which has not been controverted by the defendants, because the defendants
failed to adduce any oral or documentary evidence. She further submitted that the defendant KDA
never entered the witness box to deny the plaintiffs case but still the trial court has erroneously held
that the plaintiff failed to prove their case, which is a perverse finding.

27. She further submitted that the defendant KDA has not denied the execution of the lease
deed of the disputed plot in favour of the plaintiffs. Further, the additional demand of the KDA was
found to be illegal by the court in O.S. no. 335 of 1985, which was decreed in plaintiffs favour on
15.5.1994, which was never challenged before any court, as such, the defendant KDA cannot take a
stand that the plaintiffs have not paid the full consideration of the lease. She further submitted that
the defendant KDA could have submitted documentary evidence of handing over the possession of
the disputed plot to the plaintiffs before the court, but no such evidence was submitted by it. She
further submitted that the defendant KDA failed to prove any valid reason for not handing the
4 All. B.N. Tripathi & Ors. Vs. State of U.P.
2095
possession of the disputed plot to the plaintiffs. She further submitted that it is not the case of KDA
that the allotment of the disputed plot or the lease deed executed in favour of the plaintiffs have
been cancelled by it and subsequently, the disputed plot has been leased to some other person or
any 3rd party right has been created on it.

28. She further submitted that since the plaintiffs were deprived from the possession of the
disputed plot, which they have intended for business purposes, for sustaining their livelihood, as
such, they have suffered grave financial loss. Learned counsel submitted that as per the project
report the plaintiffs were supposed to earn a minimum profit at the rate of ₹ 13,700/- per month
after the business started on the disputed plot, but since its possession was never handed to them,
they were deprived from earning that amount. Learned counsel further submitted that the cost of
establishing business also escalated due to inflation and on this account the plaintiff suffered the
loss of ₹ 5 lakhs. She further submitted that the plaintiffs in all claimed damages of ₹ 41,16,800/-
along with interest pendentelite and future at the rate of 18% per annum from the defendant KDA,
which they were entitled to get, but the trial court has without appreciating the evidence on record,
has all together for perverse reasons dismissed the plaintiffs suit which is legally unsustainable and
is liable to be set aside. With these submissions it was prayed that the instant appeal be allowed and
the plaintiffs suit be decreed with costs. In support of her submission she has relied upon the
following case law :-

 (i) Iqbal Basith and ors. vs. N.Subbalakshmi and ors. (2021) 2 SCC 718 (by 3 Judges)

 (ii) Maula Bux vs. Union of India (1969) 2 SCC 554 (by 3 Judges)

 (iii) M/s A.T.Brij Paul Singh and ors. vs. State of Gujarat (1984) 4 SCC 59 (by 3 Judges)

 (iv) Bhagwati Prasad Jhunjhunwala & ors.vs.UCO Bank & anr. 2023 Supreme (Cal) 359

29. Sri Abhinav Krishna Srivastava learned counsel for the Kanpur Development
Authority(KDA) justified the decision of the trial court on the ground that the plaintiffs failed to
prove their case. It was also submitted that the possession of the disputed plot has been handed to
the plaintiffs but the learned counsel could not point out any documentary evidence in support of
this contention. Learned counsel admitted that the lease deed mentions that the KDA has received
the consideration of the lease deed but it does not mention that the possession of the disputed plot
was handed to the plaintiffs. Learned counsel could not point out any reason for not handing the
possession of the disputed plot to the plaintiffs. Learned counsel admitted that the lease deed
executed in favour of the plaintiffs has not been cancelled and no 3rd party right has been created
in the disputed plot. Learned counsel was repeatedly asked by the court to specify the reason for
not handing the possession of the disputed plot to the plaintiffs, but he failed to give any reply.

30. I have heard the learned counsel of the parties, perused the impugned judgment and the
record of the trial court.

31. The following issues arise for determination in this appeal :-
2096 INDIAN LAW REPORTS ALLAHABAD SERIES
 (i) Whether the defendant KDA was justified in not handing the possession of the disputed
leased plot to the plaintiffs ?

 (ii) Whether the plaintiffs had obtained the plot for commercial purposes for earning
their livelihood from it ?

 (iii) To what amount of damages are the plaintiffs entitled ?

Conclusion of this Court

32. It is evident that the plaintiffs obtained the disputed leased plot by paying its full
premium of ₹ 22,220/-as mentioned in the plaint and the lease deed, the execution of which has not
been specifically denied by the defendant KDA, in its written statement. The plaintiffs have filed
the original lease deed and also proved it in the court, by examining plaintiff no.1 B.N.Tripathi as
PW-1. It is apparent that the lease deed itself contains the terms and conditions of the lease, as
such, both the parties were bound by it. This Court has itself perused the lease deed which mentions
that the lease has been executed on 3.12.1984 on the terms and conditions printed on it.

33. The lease deed mentions that it is for the purposes of constructing factory building
only, as per the building plan approved by the Vice-Chairman of the KDA. The lease deed also
records that the consideration of the premium of ₹ 22,220/- has been paid by the plaintiffs to the
KDA @ ₹ 10/- per square yard and the area of the leased plot was 2,222 square yards. The lease
deed mentions the description of the disputed plot, which is same, as has been mentioned by the
plaintiffs in the plaint and its term as 999 years. It is apparent that the lease of the disputed property
was executed by the KDA after obtaining full premium in favour of the plaintiffs for a duration of
999 years on 3.12.1984. It is further mentioned in the lease deed that the lessee will commence the
construction of factory building on the plot within a period of one year and will completely finish
the same within the period of 2 years from the date of the lease deed or such extended period as
may be allowed by the KDA. The lease deed also records that it shall be lawful for the KDA in
respect of any breach of agreement to re-enter the demised premises. It also mentions that the KDA
can determine the lease in the case of failure on the part of the lessee to fulfil its obligations. It is
also apparent that the lease deed has been registered subsequently, in the office of sub-registrar
Kanpur on 7.12.1984, as such it is legally enforceable and admissible in evidence. It is also
apparent that no oral evidence can be adduced contrary to the terms of the lease deed.

34. The defendant KDA has averred in its written statement that the plaintiff failed to pay
the entire dues of the KDA, which is not true, because the lease deed itself mentions that the
plaintiffs have paid the entire premium of the lease amounting to ₹ 22,220/-to the KDA, which has
also been accepted by the KDA in the lease deed, at the time of its execution and registration, as
such, the assertion of KDA that the entire amount of dues was not paid by the plaintiffs, is not
tenable and is liable to be rejected.

35. It is the specific case of the plaintiffs that apart from the premium of the lease
amounting to ₹ 22,220/-interest at the rate of 15% per annum was also demanded by KDA from
them, which was deposited under protest by the plaintiffs. The plaintiffs have specifically averred
4 All. B.N. Tripathi & Ors. Vs. State of U.P.
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that they deposited an amount of ₹ 44,420.22 under protest with KDA and subsequently, for
reclaiming it they filed O.S.no. 335 of 1985 B.N.Tripathi and another vs. KDA and another, which
was decreed by the court on 17.5.1994, and the KDA was directed to refund the amount of ₹
44,420.22 by the court. The plaintiffs have filed the certified copy of the above judgment dated
17.5.1994, which clearly mentions that the disputed plot was purchased in auction by the plaintiffs
by making highest bid, which was confirmed in favour of plaintiffs on 26.4.1967. It is apparent that
O.S. no. 335 of 1985 was filed by the plaintiffs after the execution of lease deed on 3.12.1984 in
their favour by the KDA, for recovering the excess amount paid by them to the KDA. The above
judgment specifically records that the demand of interest by the KDA from 8.1.1967 to 9.11.1984
was not lawful, and the defendants should have executed the lease deed just after 9.11.1984, but it
was executed on 3.12.1984.

36. It is apparent that the lease deed itself mentions that the defendant KDA has received
the entire premium of ₹ 22,220/-from the plaintiffs and the additional demand of interest @15% per
annum amounting to ₹ 44,420.22 was found illegal by the Court of 11th Additional District Judge,
Kanpur Nagar in O.S. no. 335 of 1985, as such, there is no force in the contention of the defendant
KDA that the plaintiffs have not paid the entire consideration of the lease deed to the KDA.

37. The Apex Court in the case of Iswar Bhai C.Patel vs.Harihar Behera (1999) 3 SCC
457 has observed as under :-

 ''17...... Having not entered into the witness box and having not presented himself for
cross-examination, an adverse presumption has to be drawn against him on the basis of the
principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.''

38. The Apex Court in the case of Vidyadhar vs. Manikrao and Anr. (1999) 3 SCC 573
has again reiterated that where a party to the suit does not appear in the witness box and states his
own case on oath and does not offer himself to be cross-examined by the other side, a presumption
would arise that the case set up by him is not correct.

39. The next controversy is regarding the possession of the disputed plot. The plaintiffs
allege that its possession was not handed to them, whereas, as per the KDA the possession was
handed to the plaintiffs. It is apparent that the KDA has neither adduced any documentary nor any
oral evidence in order to prove the averments of its written statement, as such, the contention of the
KDA remains unproved. No official of the KDA has entered in the witness box to prove the case of
KDA on oath, as pleaded in the written statement and offer himself for cross-examination by the
plaintiffs. In view of the above, an adverse presumption has to be drawn against the KDA, on the
basis of principles contained in Section 114(g) of the Evidence Act,1872, that the case set up by the
KDA is false.

40. The terms and conditions of the lease deed does not mention anything about the
possession of the disputed plot. It is further apparent that the burden is upon the KDA to prove that
the possession of the disputed plot was handed by it to the plaintiffs but that burden has not been
discharged by it. The KDA could have filed the possession memo, which is prepared at the time of
handing of possession to the lessee, which is also signed by 2 witnesses. By producing the
2098 INDIAN LAW REPORTS ALLAHABAD SERIES
possession memo and examining its witnesses in the court, the KDA could have proved that it has
handed over the possession of the disputed plot to the plaintiffs, but no such evidence was led by
the KDA. Mere bald assertion by the KDA in its written statement is not sufficient to prove that it
has handed the possession of the disputed plot to the plaintiffs.

41. It is further apparent that no valid reason has been mentioned by the KDA in its written
statement for not handing the possession of the disputed plot to the plaintiffs. It is apparent that the
lease deed is silent as to the duration within which the possession was to be handed to the plaintiffs
after the execution of the lease deed.

42. It is the specific case of the plaintiffs that they obtained the leased plot for commercial
purposes, for earning their livelihood and for the sustenance of their family.