# Gaya Prasad Yadav (Deceased) & Ors v. Ram Bux (Deceased) & Ors

- **Citation:** (2024) 5 ILRA 1830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** First Appeal No. 590 of 1988
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-yadav-deceased-ors-v-ram-bux-deceased-ors-51893
- **Pages:** 11

## Headnote

Act, 1950-Section 9-Land in dispute cannot be
said to be an appurtenant land to the house of
Respondent and settled with him u/s 9 of the Act,
1950-plea of adverse possession but has not
disclosed as to who is the true owner of the land
in dispute-and ownership of Appellants has been
denied-adverse possession can be claimed
against the true owner -admitting his ownership
and proving his possession in his knowledge
without any objection- impugned order does not
suffers from any illegality.

Second Appeal dismissed. (E-9)

List of Cases cited:

## Text

1830 INDIAN LAW REPORTS ALLAHABAD SERIES
hesitation to quash the F.I.R. exercising the extra
ordinary powers of this Court under Article 226
of the Constitution of India.

27. At the very outset of the judgment, we
have mentioned in Preface about the character,
nature, conduct of a Judge, his position in the
society, expectations of public at large from a
Judge, his own public and private image and
reputation and more importantly his own basic
character which should be aboveboard having
see through integrity and impeccable and
spotless judicial character. The office of a Judge
is full of responsibility as he is supposed to
perform a divine job, but if we start comparing
with the facts of the present case, we have got no
hesitation to say that the conduct and character
of Respondent No.4 Dr. Bhagwan Das Gupta is
well short of those essential and basic characters,
which mentioned above, rather unbecoming of a
Judge. A judicial officer (Respondent no.4), as
mentioned above, just to harass the petitioners
who in discharging of their official duties were
doing a government job entrusted to them, is
proceeding to initiate a criminal case, so that the
petitioners may kneel down before him and start
dancing on his tune. If this is the standard of a
Judge, then fate and future of subordinate
judiciary is pitch dark and rudderless. He cannot
be permitted to enjoy his position as C.J.M. and
behave and act as an ordinary litigant. His own
interest, it seems, is of the paramount
consideration, for which he can stoop down to
any level. This Court, as mentioned above, has
deprecated and reprehended his conduct in the
strongest term and is in the complete
disagreement with the action taken by
Respondent no.4 against the petitioners.

Such type of conduct shall not be
repeated in future by any of the judicial officer,
except in the matter of grave and severe nature
like murder, suicide, rape or other sexual
offences, dowry death, decoity and in rest of the
remaining cases, if any, judicial officer or Judge
wants to become the first informant in his
personal capacity in any F.I.R., he must take his
concerned District Judge into confidence and
after having the assent from the District Judge,
he can become an informant of any F.I.R.

28. Taking into account the totality of
circumstances, the impugned F.I.R. so lodged by
Respondent No.4 Dr. Bhagwan Das Gupta dated
27.7.2023 as Case Crime No.605 of 2023, u/s
406, 409, 419, 420, 464, 467, 468, 471, 386
I.P.C., Police Station-Kotwali, District Banda, is
hereby Quashed. The instant Writ Petition stands
ALLOWED.

29. Let this judgment and order be
circulated through the Registrar General of this
Court to all sessions divisions of the State of U.P.,
apprising the District Judges and Judicial
Officers not to permit any F.I.R. by a
Judge/Judicial Officer, in their personal capacity
to subserve their personal interest, except the
cases of serious and heinous in nature viz;
murder, dowry deaths, sexual offences/rape or
dacoity.

30. Besides this, Registrar General of this
Court is directed to keep the copy of this
judgment in the dossier/service record of Dr.
Bhagwan
Das
Gupta,
C.J.M.,
Banda,
Respondent no.4.
----------
(2024) 5 ILRA 1830
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.05.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal No. 590 of 1988

Gaya Prasad Yadav (Deceased) & Ors.
 ...Appellants
Versus
Ram Bux (Deceased) & Ors.
 ...Respondents
5 All. Gaya Prasad Yadav (Deceased) Vs. Ram Bux (Deceased) & Ors.
1831
Counsel for the Appellant:
Balram Yadav

Counsel for the Respondents:
S.K. Mehrotra, Nand Kishore

U.P. Zamindari Abolition & Land Reforms
Act, 1950-Section 9-Land in dispute cannot be
said to be an appurtenant land to the house of
Respondent and settled with him u/s 9 of the Act,
1950-plea of adverse possession but has not
disclosed as to who is the true owner of the land
in dispute-and ownership of Appellants has been
denied-adverse possession can be claimed
against the true owner -admitting his ownership
and proving his possession in his knowledge
without any objection- impugned order does not
suffers from any illegality.

Second Appeal dismissed. (E-9)

List of Cases cited:

1. Maharaj Singh Vs St. of U.P. & ors.;(1977) 1
SCC 155

2. Smriti Debbarma (Dead) through Legal
Representative Vs Prabha Ranjan Debbarma &
ors.-2022 Live Law(SC) 19

3. Jangi Singh Vs Brij Mohan Singh &
ors.;2012(30) LCD 2616

4. Dalip Singh Vs Bhupinder Kaur; (2018) 3 SCC
677

5. Suryakunwari Vs Nanhu & ors.;2019(37) LCD
2346

6. Bhagauti Singh @ Chedi Singh S/O Madhuban
Singh Vs Mata Prasad Singh S/O Bhaggu Singh;
2022(40)LCD 2461

7. Ram Sukh Vs Gaya Din & anr.;1994(12) LCD
733

8. Dagadabai (Dead) by Legal Representatives Vs
Abbas @ Gulab Rustum Pinjari; (2017) 13 SCC
705

9. Ravinder Kaur Grewal & ors. Vs Manjit Kaur &
ors.;(2019) 8 SCC 729
10. Kapil Kumar Vs Raj Kumar; (2022) 10 SCC
281

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Balram Yadav, learned
counsel for the appellants and Sri Nand
Kishore,
learned
counsel
for
the
respondents.

2. The instant second appeal has been
filed for setting aside the judgment and
decree dated 26.08.1988, passed in Civil
Appeal No.525 of 1982; Gaya Prasad and 3
others versus Ram Bux by the IIIrd
Additional District Judge, Faizabad and
direct the respondent to not interfere into the
possession of the appellants.

3. The following substantial questions
of law have been formulated by the court in
the second appeal:-

"(i) Whether the suit could be
decreed only on the basis of adverse
possession when plaintiff was found to have
no title or have been in adverse possession?

(ii) Whether the findings of the
learned
trial
court
are
without
consideration of evidence and perverse?"

4. The brief facts of the case, as
pleaded in the plaint, by the respondent who
had filed the Regular Suit No.79 of
1981(Ram Bux versus Gaya Prasad and
others) is that the parties are resident of
Village Sidhaura, Sahijauna, Tehsil Bikapur,
District Faizabad. The land in dispute
marked by letters Ka, Kha, Ga, Gha in the
plaint map belongs to the plaintiff i.e. the
respondent
in
this
appeal(hereinafter
referred to as the respondent). The land was
in possession of the respondent since before
the abolition of Zamindari and thereafter
after abolition of Zamindari, it was settled
1832 INDIAN LAW REPORTS ALLAHABAD SERIES
with him under Section 9 of the U.P.
Zamindari Abolition and Land Reforms Act
1950(hereinafter referred to as the Act of
1950). The respondent used to tie his cattle
and keep house hold articles in the said land
and has also planted some trees like Ber,
Neer, Chilbil etc. The appellants, who were
defendants in the aforesaid suit(hereinafter
referred to as the appellants), had no concern
with the land in dispute. Since there is a
pond towards south and west of the house of
the respondent, he has shortage of sahan
land near his house, therefore he was using
the land in dispute for the aforesaid purpose.
The plea was also taken that the respondent
has matured his title over the land in dispute
by way of adverse possession. The
appellants, Lakshmi Prasad and Gaya
Prasad have their ancestral house in the
village in old abadi and about three years
back to the filing of the suit, Gaya Prasad
had forcibly constructed a house near the
disputed land and about 8-10 days back of
filing of the suit raised new construction
marked by letters Ka, Kha,Pa,Pha in the
plaint map, whereas there was no opening
towards west in the house of the appellant
no.1 situated near the land in dispute. It has
also been averred that there is nali in the land
in dispute which is being used by the
respondent for irrigating his field situated
towards south of the land in dispute from the
pond on the north side of the land in dispute.
The appellants had threatened to dispossess
the respondent from the remaining land also
marked by letters Pa, Pha, Ba, Bha in the
plaint map. Therefore the respondent filed
suit for permanent injunction with a prayer
for
restraining
the
appellants
from
interfering
with
his
ownership
and
possession over the land in dispute and
demolition of incomplete new construction.
During pendency of the suit, the appellants
completed the constructions Ka, Kha, Pa,
Pha and cut one tree of Ber, one tree of
Chilbil and two trees of Neem belonging to
the respondent worth Rs.1500/-. The
respondent amended the plaint and sought
the relief of demolition of the disputed
construction marked by letters Ka, Kha, Pa,
Pha.

5. The respondents contested the case
before the trial court by filing the written
statement and claiming that they are the
owners and in possession of the land in
dispute since before the abolition of
zamindari,therefore they have become the
owners of it after abolition of zamindari. The
house of the respondent is situated towards
north of the land in dispute at a distance and
the land in dispute is not appurtenant to his
house,therefore it cannot be said to have
been settled with him under Section 9 of the
Act of 1950. It has also been averred that
land in dispute has always been used by the
appellants for tying cattle and keeping
Ghoor etc. and trees have been planted by
them. It has been denied that the house
constructed by the appellant-Gaya Prasad
situated towards east of the land in dispute
is new one and it is old one and it has always
a door facing towards west. Brij Lal was the
father of the appellants Lakshmi Prasad and
Gaya Prasad. Gaya Prasad had three sons,
namely, Ram Pher, Ram Sumer and Mata
Deen and Lakshmi Prasad had two sons,
namely, Hari Bhajan and Sukh Deo. They
have not been made party to the suit,
therefore the suit is bad for non joinder of
the necessary parties. However,it has been
admitted that the old house of appellants
No.1 and 2 i.e. Gaya Prasad and Lakshmi
Prasad is situated at some distance towards
north and east of the present house and there
was shortage of accommodation in the old
house,therefore Gaya Prasad and Lakshmi
Prasad got partition done about 35 years
back,
consequently,
Gaya
Prasad
constructed new house towards east on the
5 All. Gaya Prasad Yadav (Deceased) Vs. Ram Bux (Deceased) & Ors.
1833
land in dispute, which had come in his share
and since then he is the exclusive owner and
in possession of the land in dispute. There
was a pond towards east of the house of
Gaya Prasad, who levelled it to earth and
some new trees have also been planted by
him on the land in dispute. The house is
situated towards east of the land in dispute
and is about 30 years old. There was an old
osara of thached structure towards west of
the house,which was reconstructed by
defendant no.1 i.e. appellant no.1 on pakki
wall and it has been denied that the osara
was new one.

6. After exchange of pleadings, the
trial court framed 9 issues and thereafter the
parties led evidence The learned trial court
after
considering
the
pleadings
and
evidence, allowed the suit filed by the
respondent and decreed it by means of the
judgment and decree dated 20.11.1982. It
was further directed that the appellants shall
remove the disputed construction from the
land in dispute within two months and do
not interfere in the possession and peaceful
enjoyment of the land in dispute described
in the plaint by the respondent. Being
aggrieved by the same, the civil appeal was
filed by the defendants i.e. the present
appellants. The appellate court, after
considering the rival contentions of the
parties and affording them opportunity of
hearing and considering the pleadings and
evidence on record, found that there is no
documentary evidence on record by either of
the parties, therefore the case is to be
decided on the basis of oral evidence and
after considering and scrutinizing the
evidence of the parties decided the civil
appeal by means of the judgment and decree
dated 26.08.1988 dismissing the appeal with
cost and confirming the judgment and
decree passed by the trial court. Hence, the
present second appeal was filed, in which
the aforesaid substantial questions of law
have been formulated.

7. Learned counsel for the appellants
submitted that the appellants are in
possession on the land in dispute since
before the abolition of zamindari and,
accordingly, it settled with them under
Section 9 of the Act of 1950 after abolition
of zamindari. In partition between the
brothers, it had come to the appellant no.1,
who had constructed the house on the
eastern side of the land in dispute with an
opening on the western side of his house
towards the land in dispute since beginning.
His osara is also on the land in dispute,
which is old one. He further submitted that
the land in dispute is not appurtenant land to
the house of the respondent and at a
considerable distance from the house of the
respondent on the southern side,therefore it
cannot be said to be appurtenant land to the
house of the respondent and settled with him
under Section 9 of the Act of 1950. He had
also never in possession on the land in
dispute and the appellants are in possession.
But trial court without considering it and the
oral evidence adduced before the trial court
and wrongly and illegally examining the
evidence of the parties, allowed the suit. He
further submitted that the appellate court
also failed to consider the above and without
appreciating the evidence of the parties
appropriately dismissed the suit. Thus, the
submission was that since the land in dispute
cannot be treated an appurtenant land of the
house of the respondent,therefore no rights
could have been said to have accrued to him
on the land in dispute. It has also been
submitted that the case set up by the
respondent on the basis of adverse
possession is also totally misconceived and
not tenable for the reason that he had never
been in possession of the land in dispute.
Accordingly
learned
counsel
for
the
1834 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants submitted that the appeal is liable
to be allowed and the judgment and decree
passed by the first appellate court is liable to
be set aside. He relied on Maharaj Singh
versus State of Uttar Pradesh and
others;(1977) 1 SCC 155 and Smriti
Debbarma
(Dead)
through
Legal
Representative versus Prabha Ranjan
Debbarma and Others;2022 Live Law(SC)
19.

8. Per contra, learned counsel for the
respondent submitted that the respondent
had been in possession on the land in dispute
since prior to abolition of zamindari,
therefore it has settled with him after
abolition of zamindari under Section 9 of the
Act of 1950. The respondent was using this
land for various agricultural purposes
because there is no land near his house for
the said purpose, which is essential for a
farmer residing in village. He had also
planted some trees on the land in dispute and
constructed the nali from north to south for
irrigation of his agricultural land from the
pond situated adjacent to the land in dispute
on the southern side from the pond on the
north side of the land in dispute. He further
submitted that the appellants had house in
the old abadi and the appellant no.1 has
constructed a house adjacent to the land in
dispute forcibly about three years back but
there was no door towards the land in
dispute on the western side. However, about
8-10 days prior to filing of the suit, he had
opened the door on the western side towards
the land in dispute and started making osara
on the land in dispute, therefore the
respondent had to file the suit. He further
submitted that during pendency of the suit,
the
appellants
had
completed
their
construction on the land in dispute and have
also cut some trees which has been proved
by the commission report,which was
conducted in pursuance of the order passed
by the trial court in presence of the parties.
He further submitted that the learned trial
court as well as the first appellate court have
rightly and in accordance with law allowed
and decreed the suit and dismissed the
appeal after considering the evidence led by
the parties and pleadings on record. There is
no illegality or error in the orders passed by
the trial court as well as the appellate court
and the concurrent findings of facts recorded
by them may not be interfered by this Court
as there is no illegality or perversity in it.
The appeal is liable to be dismissed. He
relied on Jangi Singh versus Brij Mohan
Singh
and
others;2012(30)
LCD
2616,Dalip Singh versus Bhupinder Kaur;
(2018) 3 SCC 677,Suryakunwari versus
Nanhu and Others;2019(37) LCD 2346
and Bhagauti Singh @ Chedi Singh S/O
Madhuban Singh versus Mata Prasad
Singh S/O Bhaggu Singh; 2022(40)LCD
2461.

9. I have considered the submissions of
learned counsel for the parties and perused
the records.

10. The land in dispute is being
claimed to have settled with them by both
the parties under Section 9 of the Act of
1950, being in possession since prior to the
abolition of zamindari. The spot position
shows that the house of the respondent is
situated towards north of the land in dispute
after a reasonable distance and some abadi
and a pond(talab).

11. Section 9 of the Act of 1950
provides for conceptualizing the area
appurtenant to buildings to have settled with
them. 'Appurtenance', in relation to a
building etc. is dependence of the building
on what appertains to it for its use as a
building. It has been considered by the
Hon'ble Supreme Court, in the case of
5 All. Gaya Prasad Yadav (Deceased) Vs. Ram Bux (Deceased) & Ors.
1835
Maharaj Singh versus State of Uttar
Pradesh and others(supra) and held that in
short the touch stone of "appurtenance" is
dependence of the builiding on what
appertains to it for use as a building. The
Hon'ble Supreme Court has also observed
that the High Court has granted viz.5 yards
of surrounding space, is sound in law
although based on the guess work in fact. As
such in fact the Hon'ble Supreme Court has
observed that 5 years of surounding space is
based
only
on
guess
work.
However,appurtenant does not mean just
adjacent to the house as held by this Court,
in the case of Ram Sukh versus Gaya Din
& Another;1994(12) LCD 733, the relevant
paragraphs 28 and 29 of which are extracted
here-in-below:-

"28. It is also well settled that a
Riaya may have the Sahan Darwaza on all
the sides of a house. It is user of the land on
the date of vesting and prior thereto is
material. The passing of a galiyara or Rasta
or drain in between the building or house
and the land over which in relation to a
building
or
house,
the
rights
of
appurtenance is claimed, does not adversely
affect the sahan darwaza right or rights
involving rights of a person to a land as land
appurtenant In the case of Special Manager
Court of Wards. Balrampur Estate v. Shyam
Lal (AIR 1936 Oudh 324) it has been held by
the Chief Court of Oudh, that land
appurtenant to residential house need not be
actually adjoining the house and the user of
the land for the enjoyment of the house by
the claimant or by person is necessary to be
proved with certain length of period may be
of 12 years as held by Chief Court of Oudh
in the case of S. Murtaza Ali v. Emperor,
reported in (AIR 1947 Oudh page 131).

29. The material observation of
the Hon'ble Chief Court of Oudh in the case
of Balrampur Estate (Supra) reads as under:

"As to the argument that the land
in question cannot be treated as appurtenant
to house because there is a public road
interven- ing I do not think there is any force
in the contention. No authority has been
cited for the view that appurtenant land must
actually be adjoining the residential house,
prima facie, I do not see why a tenant should
not use land opposite his house but on the
other side of public way for the purpose of
tethering his cattle and why such land
should not be regarded as appurtenant to his
house. In absence of any authority to the
contrary I think it may be held that the land
is appurtenant."

12. In view of above, it cannot be said
that the land in dispute is an appurtenant
land to the house of the respondent and
settled with him under Section 9 of the Act
of 1950.

13. The other plea taken by the
respondent is of adverse possession, but he
has not disclosed as to who is the true owner
of the land in dispute against whom he is
claiming adverse possession and the
ownership of appellants has been denied,
whereas adverse possession can be claimed
against the true owner and only after
admitting his ownership and proving his
possession in his knowledge without any
objection. In absence of any such pleadings
and proof, it cannot be said that the
respondent has matured his title by way of
adverse possession.

14. The Hon'ble Supreme Court, in the
case of Dagadabai (Dead) by Legal
Representatives versus Abbas alia Gulab
Rustum Pinjari; (2017) 13 SCC 705, has
held that it is a settled principle of law of
adverse possession that the person, who
claims title over the property on the strength
of adverse possession and thereby wants the
1836 INDIAN LAW REPORTS ALLAHABAD SERIES
Court to divest the true owner of his
ownership rights over such property, is
required to prove his case only against the
true owner of the property. It is equally wellsettled that such person must necessarily
first admit the ownership of the true owner
over the property to the knowledge of the
true owner and secondly, the true owner has
to be made a party to the suit to enable the
Court to decide the plea of adverse
possession between the two rival claimants.
The relevant paragraphs 16 and 17 are
extracted here-in-below:-

"16. Fourth, the High Court erred
fundamentally in observing in para 7 that,
"it was not necessary for him (defendant) to
first admit the ownership of the plaintiff
before raising such a plea". In our
considered opinion, these observations of
the High Court are against the law of
adverse possession. It is a settled principle
of law of adverse possession that the person,
who claims title over the property on the
strength of adverse possession and thereby
wants the Court to divest the true owner of
his ownership rights over such property, is
required to prove his case only against the
true owner of the property. It is equally well
settled that such person must necessarily
first admit the ownership of the true owner
over the property to the knowledge of the
true owner and secondly, the true owner has
to be made a party to the suit to enable the
Court to decide the plea of adverse
possession between the two rival claimants.

17. It is only thereafter and subject
to proving other material conditions with the
aid of adequate evidence on the issue of
actual,
peaceful,
and
uninterrupted
continuous possession of the person over the
suit property for more than 12 years to the
exclusion of true owner with the element of
hostility in asserting the rights of ownership
to the knowledge of the true owner, a case of
adverse possession can be held to be made
out which, in turn, results in depriving the
true owner of his ownership rights in the
property and vests ownership rights of the
property in the person who claims it.

15. The Hon'ble Supreme Court in the
case of Ravinder Kaur Grewal and others
versus Manjit Kaur and others;(2019) 8
SCC 729 has held as under in paragraph 60
and 61:-

"60. The adverse possession
requires all the three classic requirements to
co-exist at the same time, namely, nec vi i.e.
adequate in continuity, nec clam i.e.
adequate in publicity and nec precorio i.e.
adverse to a competitor, in denial of title and
his knowledge. Visible, notorious and
peaceful so that if the owner does not take
care to know notorious facts, knowledge is
attributed to him on the basis that but for
due diligence he would have known it.
Adverse possession cannot be decreed on a
title
which
is
not
pleaded. Animus
possidendi under hostile colour of title is
required. Trespasser's long possession is not
synonymous
with
adverse
possession.
Trespasser's possession is construed to be
on behalf of the owner, the casual user does
not constitute adverse possession. The
owner can take possession from a trespasser
at any point in time. Possessor looks after
the property, protects it and in case of
agricultural property by and large the
coricept is that actual tiller should own the
land who works by dint of his hard labour
and makes the land cultivable. The
legislature in various States confers rights
based on possession.

61.
Adverse
possession
is
heritable and there can be tacking of
adverse possession by two or more persons
as the right is transmissible one. In our
opinion, it confers a perfected right which
5 All. Gaya Prasad Yadav (Deceased) Vs. Ram Bux (Deceased) & Ors.
1837
cannot be defeated on re-entry except as
provided in Article 65 itself. Tacking is
based on the fulfilment of certain conditions,
tacking may be by possession by the
purchaser, legatee or assignee, etc. so as to
constitute continuity of possession, that
person must be claiming through whom it is
sought to be tacked, and would depend on
the identity of the same property under the
same right. Two distinct trespassers cannot
tack their possession to constitute conferral
of right by adverse possession for the
prescribed period."

"

16. The learned trial court as well
as the appellate court, on the basis of
pleadings and evidence of the parties, found
that the land in dispute is situated towards
west of the house of the appellants and at a
reasonable distance in the south of the house
of the respondent and the agricultural land
of the respondent is in the south of the land
in dispute,adjacent to it. It has been stated by
the respondent Ram Bux, who appeared as
P.W.1, that he was in possession of the land
in dispute since before the abolition of
zamindari and his house is situated towards
north of it after talab. There was shortage of
sahan land near his house therefore his
ancestors occupied the land in dispute for
various agricultural purposes and work of
leather and remained in peaceful possession
of this land. In the cross examination, he
stated that there is a rasta connecting his
house to the land in dispute towards south
and there is no ahata in his house towards
north and west. The houses of his real
brothers Munai and Kandhai are situated
towards east of his house. There is no open
land towards east of his house and towards
north of his house there are bamboo clumps,
towards south of his house there is gali and
towards west of his house there is talab after
some distance. The learned court's below
also found that the commissioner's map
shows that there is little open land towards
west of the house of the respondent and the
land in dispute is well connected from his
house by a rasta. Admittedly, the agricultural
land of the respondent is situated towards
south of the land in dispute, which is
adjacent to it and there is a naali in the land
in dispute from north to south i.e. from the
pond(talab) to the land in dispute,in regard
to which respondent stated that he has
constructed this naali for irrigation of his
agricultural field. However, it has been
disputed by the appellants, who have stated
that it was constructed by them for
preserving the water of rains, which could
not be proved by any cogent evidence
because it goes to the agricultural field of the
respondent.

17. The respondent has also stated that
he is living separately after separation from
his brothers since last 35 years. He has also
stated in his evidence that the appellants
have their house in the old abadi, which is
not disputed by the appellants and he has
constructed his house adjacent to the land in
dispute about 3 years back, meaning
thereby, his house was constructed in the
year 1976. P.W.2-Nithuri, though of not the
same village, has stated that the respondent
has some agricultural land in the disputed
village and has also stated that the appellants
had pressurized him not to depose in favour
of the respondent. There is also no dispute
among the parties that there are some trees
on the land in dispute. The Commissioner,
who visited the spot also found naali which
was connecting agricultural field of the
respondent situated towards south of the
land in dispute from pond, in regard to
which a specific plea has been made by the
respondent that it was made by him for
irrigation of his field. The appellants could
not deny the existence of it, which also
supports the case of the respondent that he is
1838 INDIAN LAW REPORTS ALLAHABAD SERIES
in possession of the land in dispute, which
was being used by him for keeping cattle,
ghoor etc. It is settled law that if any person
is in possession of any land by any means,
he can be ejected only by the real owner in
accordance with law and none else.
Therefore, merely because the land in
dispute is situated at some distance from the
house of the respondent, his possession
cannot be disbelieved on the land in dispute,
when it is proved by evidence and
admittedly the agricultural filed of the
respondent is situated towards south of the
land in dispute, adjacent to it since before
the chakbandi operation. The aforesaid
concurrent findings of fact have been
recorded by the trial court as well as the
appellate court and held that it cannot be
said that the possession of the respondent
over the land in dispute was without any
basis.

18. While considering the case of the
appellants, it has been found by the appellate
court that the defendant i.e. the appellant
Gaya Prasad, who is owner of the house
situated towards east of the land in dispute
has not appeared and adduced any evidence.
His brother, Lakshmi Prasad appeared as
D.W.1. Though the appellants had set up a
case in the written statement that the
partition had taken place about 35-36 years
back between the brothers but D.W.1 could
not state as to when the partition had taken
place. In fact the D.W.1 tried to conceal the
material facts. D.W.2 Gaya Charan, who has
constructed the house of Gaya Prasad stated
that his house was constructed about 30
years back. In his cross examination, he has
admitted his age as 45 years. Therefore
according to him, the house of Gaya Prasad
is now about 30 years old, whereas
according to the evidence of D.W.3 Jokhu, it
was about 20 years old because he stated
that when this house was constructed he was
aged about 25 years and his statement was
recorded in the year 1982 and his age at that
time was 45 years. However, according to
the commissioner, the house of Gaya Prasad
was old one, therefore the appellants have
not given the correct and true facts and
concealed.

19. The respondent had set up a case
that the appellant had no door on the side of
the land in dispute and commissioner who
visited the spot during pendency of the suit
has clearly mentioned in his report that the
door was new one and it was opened newly
as was evident from the fresh mud used . He
has
also
reported
that
the disputed
construction
marked
by
letters
ka,
Kha,Pa,Pha was under construction at the
time of his visit and it was new one and he
found no sign of old construction on the land
in dispute. The appellants have failed to give
any cogent evidence to show that there was
any old construction on the land in dispute.
The commissioner has also found some pits
in the land in dispute, from where the trees
were cut. D.W.2 has also admitted in his
cross examination that at the time of
construction of ka, Kha,Pa,Pha,he found
some dry cut trees on the land in dispute, in
regard to which no explanation has been
given by the appellants in their written
statement or evidence. D.W.2,has stated that
he had constructed the house in the year
1956 and his statement was recorded in the
year 1982 therefore the house of Gaya
Prasad must have been constructed 25 years
back but he has also stated that he had gone
to his house about two years back for certain
repairs. Therefore on the basis of above, the
courts below found that the respondent is in
possession of the land in dispute and as
correctly observed by first appellate court
that the person in possession can be evicted
only by the owner of the house that too only
in accordance with law and the appellants
5 All. Gaya Prasad Yadav (Deceased) Vs. Ram Bux (Deceased) & Ors.
1839
have failed to prove their ownership and
possession on the land in dispute.

20. The Hon'ble Supreme Court, in the
case of Smriti Debbarma (Dead) through
Legal
Representative
versus
Prabha
Ranjan Debbarma and Others(supra) has
held that a person in possession of the land
in the assumed character as the owner, and
exercising peacebly the ordinary rights of
ownership, has a legal right against the
entire world except the rightful owner and
lies on the party who asserts the existence of
a particular state of things on the basis of
which she claims relief.

21. The Hon'ble Supreme Court, in the
case of Ravinder Kaur Grewal and others
versus Manjit Kaur and others(supra), has
held that a person in possession cannot be
ousted by another person except by due
procedure of law.

22. In view of above the courts below
have recorded concurrent findings of facts
on the basis of pleadings and evidence of the
parties and held that the respondent is in
possession on the land in dispute and the
appellants have opened a door towards the
west of their house on the land in dispute and
raised certain constructions on it. This Court
does not find any illegality or perversity in
the concurrent findings recorded by the
courts below, which may require any
interference by this Court.

23. A coordinate Bench of this Court,
in the case of Suryakunwari versus Nanhu
and Others(supra), considering several
judgments including Dalip Singh versus
Bhupinder Kaur(supra) has held that the
concurrent findings of fact recorded by the
two courts are not liable to be set aside
unless and until the findings are perverse.
The relevant paragraphs 11 to 16 are
extracted here-in-below:-

"11. In this case, there are
concurrent findings on facts by both the
courts below. The Hon'ble Apex Court in
catena of judgments has laid down the law
that the concurrent findings of fact recorded
by two courts below should not be interfered
by the High Court in Second Appeal, unless
and until the findings are perverse.

12. In a recent case of Shivah
Balram Haibatti Vs. Avinash Maruthi
Pawar (2018)11 SCC 652 the Apex Court
has held as under:-

"......
These
findings
being
concurrent findings of fact were binding on
the High Court and, therefore, the second
appeal should have been dismissed in limine
as involving no substantial question of law."

13. In another recent case of
Narendra and others Vs. Ajabrao S/o
Narayan Katare (dead) through legal
representatives, (2018) 11 SCC 564 the
Hon'ble Apex Court held as under:-

"...interference in second appeal
with finding of fact is permissible where
such finding is found to be wholly perverse
to the extent that no judicial person could
ever record such finding or where that
finding is found to be against any settled
principle of law or pleadings or evidence.
Such errors constitute a question of law
permitting interference in Second Appeal."

14. In one more recent case Dalip
Singh Vs. Bhupinder Kaur, (2018) 3 SCC
677 the Hon'ble Apex Court has held that if
there is no perversity in concurrent findings
of fact, interference by the High Court in
Second Appeal is not permissible.

15. In Gautam Sarup v. Leela Jetly
and Ors. [(2008) 7 SCC 85], the Apex Court
held that a party is entitled to take an
alternative plea. Such alternative pleas,
1840 INDIAN LAW REPORTS ALLAHABAD SERIES
however, cannot be mutually destructive of
each other.

16. In State Bank of India and
others Vs. S.N. Goyal; (2008) 8 SCC 92 the
Hon'ble Supreme Court has held as under :-

"Second appeals would lie in cases
which involve substantial questions of law. The
word 'substantial' prefixed to 'question of law'
does not refer to the stakes involved in the case,
nor intended to refer only to questions of law of
general importance, but refers to impact or effect
of the question of law on the decision in the lis
between the parties. 'Substantial questions of
law' means not only substantial questions of law
of general importance, but also substantial
question of law arising in a case as between the
parties. In the context of section 100 CPC, any
question of law which affects the final decision in
a case is a substantial question of law as between
the parties. A question of law which arises
incidentally or collaterally, having no bearing in
the final outcome, will not be a substantial
question of law. Where there is a clear and
settled enunciation on a question of law, by this
Court or by the High Court concerned, it cannot
be said that the case involves a substantial
question of law."

24. Similar view has been taken by a
Coordinate Bench of this Court, in the case of
Bhagauti Singh @ Chedi Singh S/O
Madhuban Singh versus Mata Prasad Singh
S/O Bhaggu Singh(supra), in which it has been
held that it is crystal clear that the High Court in
exercise of power under Section 100 CPC
should not interfere in the findings of fact
recorded by the first appellate court, which is a
final court of fact or concurrent findings of fact
unless the same are based on no evidence or
perverse.

25. A coordinate Bench of this Court, in the
case of Jangi Singh versus Brij Mohan Singh
and others(supra), has held that both the courts
below have recorded their finding on the basis of
the evidence on record which does not give any
rise to the substantial question of law as raised by
the defendant-appellant. However observation in
regard to appurtenant land is not applicable on
the facts and circumstances of this case.

26. The Hon'ble Supreme Court in the
case of Kapil Kumar versus Raj Kumar; (2022)
10 SCC 281, has held that unless the concurrent
findings recorded by the courts below were
found to be perverse, the same were not required
to be interfered with by the High Court in
exercise of powers under Section 100 CPC.

27. In view of above and considering the
overall facts and circumstances of the case, this
Court is of the view that trial court as well as the
first appellate court have recorded finding of
facts on the basis of the pleadings and evidence
as well as the commission report, which does not
suffer from any illegality,error or perversity
which may require any interference by this
Court. The aforesaid substantial questions of law
formulated by this Court are answered
accordingly. This second appeal has been filed
on mis-conceived and baseless grounds, which
is liable to be dismissed.

28. The second appeal is, accordingly,
dismissed with cost.
----------
(2024) 5 ILRA 1840
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Transfer Application (Criminal) No. 66 of 2022

Smt. Roshan Jahan ...Applicant
Versus
Hasmat Ali @ Chhedu & Anr.
 ...Opposite Parties