# Nagar Kshetra Samiti, Sadabad, Mathura v. Kanchan Singh & Ors

- **Citation:** (2023) 5 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Second Appeal No. 108 of 2008
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-kshetra-samiti-sadabad-mathura-v-kanchan-singh-ors-50194
- **Pages:** 22

## Headnote

A. Civil Law - Code of Civil Procedure,
1908-Order 41 Rule 33-Appellate Court
by exercising the power under Order 41
Rule 33 varied the decree of demolition
substituting it by a direction to the
plaintiffs to pay for the constructions
raised-the constructions were, on the
concurrent findings of the court below,
raised without title by defendant no. 4,
disturbing
the
plaintiffs'
possessiondefendants
no.
4
out
of
4
to
7
defendants, who contested the suit, did
not appeal the Trial's court decree-it
was the defendant's no. 1 alone that
appealed the decree, therefore to direct
some benefit to defendants no. 4 to 7 by
the lower appellate court is absolutely
without basis i.e. in the absence of a
'cross -objection' under Order 41 Rule
22
of
the
code-Thus,
the
Lower
Appellate Court is not at all justified in
granting relief to the defendants no. 4 to
7 to recover costs of the constructions
from the plaintiffs-The decree passed by
the
Lower
Appellate
Court
is
set
aside.(Para 1 to 74)

The appeals are disposed of.(E-6)

List of cases cited:

## Text

_Characters 0–39,900 of 76,164. This is a partial read: ask again with offset=39900 for what follows._

5 All. Nagar Kshetra Samiti, Sadabad, Mathura Vs. Kanchan Singh & Ors.
225

(15) For all the aforesaid reasons, the
instant First Appeal fails and as such is
hereby dismissed.
----------
(2023) 5 ILRA 225
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 108 of 2008
And
Second Appeal No. 26 of 2020

Nagar Kshetra Samiti, Sadabad, Mathura
 ...Appellant
Versus
Kanchan Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Kshitij Shailendra, Sri V.M. Zaidi, Sri
V.K. Agarwal

Counsel for the Respondents:
Sri V.K. Srivastava, Sri Anil Kumar, Sri J.B.
Singh, Sri J. Singh, Sri Jeevan Singh, Sri
Preet Pal Rathore, Sri V.A. Agarwal, Sri
Vinod Kumar Agarwal

A. Civil Law - Code of Civil Procedure,
1908-Order 41 Rule 33-Appellate Court
by exercising the power under Order 41
Rule 33 varied the decree of demolition
substituting it by a direction to the
plaintiffs to pay for the constructions
raised-the constructions were, on the
concurrent findings of the court below,
raised without title by defendant no. 4,
disturbing
the
plaintiffs'
possessiondefendants
no.
4
out
of
4
to
7
defendants, who contested the suit, did
not appeal the Trial's court decree-it
was the defendant's no. 1 alone that
appealed the decree, therefore to direct
some benefit to defendants no. 4 to 7 by
the lower appellate court is absolutely
without basis i.e. in the absence of a
'cross -objection' under Order 41 Rule
22
of
the
code-Thus,
the
Lower
Appellate Court is not at all justified in
granting relief to the defendants no. 4 to
7 to recover costs of the constructions
from the plaintiffs-The decree passed by
the
Lower
Appellate
Court
is
set
aside.(Para 1 to 74)

The appeals are disposed of.(E-6)

List of cases cited:

1. St. of Ori. & anr. Vs Bamadeb Panigrahi & anr.
(1971) AIR Ori 227

2. Dhian Singh Sobha Singh & anr. Vs UOI
(1958) AIR SC 274

3. Munuswami Chetty & ors. Vs Commr.H.R.&
C.E (Admn). Madras (1993) AIR Mad 144

4. St. of A.P. & ors. Vs Pioneer Builders,
A.P.(2006) 12 SCC 119

5. K. Muthuswami Gounder Vs N. Palaniappa
Gounder (1998) 7 SCC 327

6. Banarsi & ors. Vs Ram Phal (2003) 9 SCC 606

(Delivered by Hon'ble J.J. Munir, J.)

1. This judgment will decide Second
Appeal No.108 of 2008 and Second Appeal
No.26 of 2020, both of which arise out of
the same suit. The Trial Court decided the
suit by the same judgment, leading to a
single appeal from the original decree by
one of the defendants. The judgment and
decree passed by the Lower Appellate
Court has left both the plaintiffs and the
defendants dissatisfied, leading to these
two appeals, arising out of the appellate
decree.

2. Original Suit No.389 of 1986 was
instituted on 14.11.1986 by Kanchan Singh
and Man Singh, both sons of Babu Lal in
the ex-Court of the Civil Judge, Mathura
226 INDIAN LAW REPORTS ALLAHABAD SERIES
(now Civil Judge, Senior Division) against
seven defendants, shortly to be specified.

3. By the said suit, the plaintiffs
sought relief of permanent prohibitory
injunction to the effect that the defendants
be restrained from interfering with the
plaintiffs' title or possession in Khasra
No.216, admeasuring -61 decimals, Khewat
No.1, situate at Villate Neelkanth, District
Mathura, or on the basis of rights created
amongst themselves from demolishing (any
construction) or digging up a foundation on
the said property and constructing anything
thereon or interfere with the plaintiffs
raising a boundary wall around the said
property,
and
further
forbear
from
interfering with the plaintiffs' possession in
any manner or take possession of the
property themselves.

4. The defendants to the suit are the
Town Area Committee, Sadabad through its
Officer
In-charge.
The
Town
Area
Committee aforesaid was then included in
the district of Mathura, but is now part of
District Hathras. The District Magistrate,
Mathura is the second defendant to the suit,
whereas
the
third
defendant
is
the
Government of Uttar Pradesh, represented
by the Collector, Mathura. The fourth
defendant to the suit was the Station House
Officer, P.S. Sadabad, District Mathura
(now District Hathras). The fifth defendant
to the suit was the Superintendent of
Police, Mathura. The sixth defendant was
the Director General of Police, Uttar
Pradesh, Lucknow and the last defendant
was the Deputy Inspector General of
Police, Agra Range, Agra.

5. It may be mentioned at the outset
that though pending suit, many of the
defendants would have changed, because
Town Sadabad came to be included in the
district of Hathras, but the suit was
contested by defendant Nos.1 and 4 alone,
who put in their written statements and led
evidence. The other defendants did not file
any written statement or otherwise contest.
After the reverse in the Trial Court suffered
by the defendants, it was defendant No.1
alone, which appealed the original decree
to the District Judge, and loosing there, has
carried Second Appeal No.108 of 2008.
Defendant No.4 gave up contest after the
Trial Court's judgment.

6. In Second Appeal No.108 of 2008,
which is being treated the leading case, the
Town Area Committee, Sadabad, District
Mathura through its Officer In-charge/
Chairman, is the sole defendant-appellant.
Hereinafter, the defendant-appellant shall
be
referred
to
as
defendant
No.1.
Respondent Nos.1 and 2 to this appeal are
the plaintiffs. The other defendants to the
suit in the present appeal are arrayed as
defendant-respondent Nos.3, 4, 5, 6, 7 and
8, and described as defendant/ proforma
respondents. The said defendants shall be
called hereinafter as defendant Nos.2, 3, 4,
5, 6 and 7 for the ease of reference.

7. In Second Appeal No.26 of 2020,
Kanchan Singh and Man Singh are the two
plaintiff-appellants and respondent Nos.1 to
7 are defendant Nos.1 to 7 in the suit.
Kanchan Singh died pending Second
Appeal No.108 of 2008 and before Second
Appeal No.26 of 2020 was instituted. Both
the plaintiff are now represented on record
by their heirs and LRs, who have contested
and pursued these appeals, representing the
plaintiffs' interest. For the ease of reference,
therefore, the plaintiffs shall be referred to
as 'the plaintiffs', wherever there is a
collective reference and should individual
reference
be
necessary,
they
would
mentioned by their names as 'Kanchan
5 All. Nagar Kshetra Samiti, Sadabad, Mathura Vs. Kanchan Singh & Ors.
227
Singh' or 'Man Singh', it being understood
that it bears reference to their heirs and LRs
now on record.

8. The plaintiffs' case is that they are
owners in possession of the property, part
of
Khewat
No.1,
Khasra
No.16,
admeasuring -61 decimals, situate at
Village
Neelkanth,
Pargana
Sadabad,
District
Mathura
with
boundaries
to
identify, being set out at the foot of the
plaint. The said property shall hereinafter
be called 'the suit property'. It is the
plaintiffs' case that the suit property was
earlier owned by Kisan Swarup, Raman
Bihari, Jaiveer Singh, sons of Bankey Lal,
and Ram Autar and Ram Kumar sons of
Sohan Lal, who were in possession of the
same. A more detailed mention of the
plaintiffs' vendors shall be made later on,
indicating the line of inheritance, as the
plaintiffs' vendors claimed the suit property
to be ancestral. The suit property was
recorded in the name of the plaintiffs'
vendors as a 'Pajawa'. The plaintiffs'
vendors would fire this brick kiln, the
byproduct of which was ash, that would
collect on the suit property. The then
owners would give away the collected ash
on a contract for sale. The former owners
earlier and the plaintiffs for the present, still
sell off ash that lies on the suit property.

9. The plaintiffs' case further is that
the suit property, on account of large
deposits of ash from the brick kiln, has
become undulated and they have got one
part of it levelled. The plaintiffs entered
into
an
agreement
dated
15.03.1979
contracting to buy the suit property from
their vendors, paying in earnest a sum of
Rs.2000/-. It is the plaintiffs' case that they
got a sale deed of the suit property to the
extent of -13 1⁄4 decimals executed in their
favour by Bhagwati Prasad, Raj Bahadur,
Chandra Prakash, all sons of Bankey Lal.
The sale deed aforesaid was executed and
registered on 23.03.1979 for a total sale
consideration of Rs.6000/-. The plaintiffs
further purchased an area of 43-4/7
decimals by means a registered deed dated
16.05.1979 executed by Kisan Swarup,
Raman Bihari, Jaiveer sons of Bankey Lal
and Ram Autar, Ram Kumar sons of Sohan
Lal, for a total sale consideration of
Rs.20,000/-.

10. The vendors aforesaid put the
plaintiffs in possession of the suit property
thus transferred. The plaintiffs' name was
duly mutated in the revenue records on the
basis of the sale deeds aforesaid. The
plaintiffs expended money and got a room
constructed, 15' long and 12' wide, towards
the north-eastern part of the suit property.
The plaintiffs got a part of the suit property
levelled and intended to get the same done
for the remainder for the purpose of raising
constructions. The suit property was in the
joint possession of the plaintiffs' vendors
and the defendants could have had no
concern with it. It is the plaintiffs' case that
Ranveer Singh son of Pancham Singh, a
resident of Vedai, Tehsil Sadabad and
Roshan Lal stirred up a bogus controversy,
because they wanted to extort money from
the plaintiffs. In order to vindicate their
rights against the two men last mentioned,
the plaintiffs had to institute O.S. No.152 of
1979 in the Court of the Munsif, Mahawan,
District Mathura, titled Kanchan Singh and
others vs. Ranveer Singh and others.

11. The plaintiffs say that they needed
to raise a loan and, therefore, mortgaged
the suit property with the State Bank of
India, Sadabad Branch, which holds rights
over the suit property to the extent of all its
-61 decimals. The plaintiffs sold away a
part of the suit property to Ranveer Singh,
228 INDIAN LAW REPORTS ALLAHABAD SERIES
the man they later had to sue and delivered
possession to him, openly in terms of their
deed. The sale deed, the plaintiffs' executed
in Ranveer Singh's favour, related to that
part of the suit property, over which they
had constructed a room. The plaintiffs say
that some men from Sadabad harbour illwill and malice against them and some
employees of the Town Area Committee,
Sadabad (defendant No.1) are inclined to
trouble
the
plaintiffs.
Accordingly,
defendant No.1 are designing to usurp the
suit property and have incorrectly informed
defendant No.2 that the suit property
belongs to defendant No.1.

12. It is the plaintiffs' further case that
defendant Nos.1 and 2 doing some transfer
by
writing
amongst
themselves
are
intending to assign the suit property to
defendant Nos.5, 6 and 7 for the purpose of
construction of a Police Chowki. The said
defendants (Nos.1 and 2) do not have the
right to do that. The plaintiffs assert that
defendant No.4 is unnecessarily interfering
with the the plaintiffs' use of the suit
property. The plaintiffs allege raising a
boundary wall over the suit property, which
defendant No.4 interfered with and got the
construction illegally stopped, threatening
the plaintiffs with arrest and detention in
jail. All the defendants are said to be in
connivance, on account of which, they have
been impleaded as defendants to the suit.

13. It is the plaintiffs' case that they
are scared of defendant Nos.1, 3, 4 and 6,
because they are extending threats to the
plaintiffs, asking them to transfer rights in
favour of defendant Nos.1-3 and 4-6, so
that they may construct the Kotwali there
soon. The local Patwari is scared of
defendant No.2 and does not speak the
truth for that reason. There is an averment
in paragraph No.16 of the plaint that in case
the plaintiffs were to serve a notice under
Section 80 CPC and wait for the statutory
period of two months before instituting the
suit, the purpose of instituting the suit
would become futile. Defendant Nos.1-3, 5,
6 and 7 would amongst themselves, doing
the
necessary
paper
work,
raise
construction
over
the
suit
property,
dispossessing the plaintiffs, which would
cause irreparable loss and injury to the
plaintiffs. It is also averred that for the said
reason, leave ought to be granted to the
plaintiffs to institute the suit, without
service of the statutory notice and waiting
for the statutory period of two months.
Disclosing the aforesaid cause of action
involving threatened dispossession and
forcible construction on the suit property,
the plaintiffs instituted the suit, giving rise
to this appeal, for the relief of permanent
injunction per details already indicated.

14. Defendant No.1 filed a written
statement. The said defendant admitted the
fact that the suit property was indeed
located in Khasra No.216, but denied that
the plaintiffs were the owners thereof.
Defendant No.1 further admitted the fact
that in the revenue records, the suit
property was entered as a Pajawa and
about this entry, it is said in a plea of
avoidance that it has been wrongly made in
those records. The other allegations in the
plaint were denied and it was pleaded that
neither the plaintiffs nor their transferers
hold title to the suit property; nor any of
them were in possession. The case about
the plaintiffs' predecessor running a brick
kiln on the suit property, leading to the
accumulation of ash there, was all denied.
The fact of execution of sale deeds for
whole of the suit property was also denied.
It was also denied that the plaintiffs'
transferers were owners of the entire suit
property. It was pleaded that for the said
5 All. Nagar Kshetra Samiti, Sadabad, Mathura Vs. Kanchan Singh & Ors.
229
reason, they did not have the right to
transfer the entire suit property to the
plaintiffs.
The
plaintiffs'
case
about
construction of a room there has also been
denied. The reason assigned is that the
plaintiffs never presented any building plan
for
sanction
before
defendant
No.1,
authorizing them to raise that construction.

15. It is the case of defendant No.1
that a perusal of the Khewat relied upon by
the plaintiffs shows that the entire area is
2.80 decimals. Bankey Lal son of Kanhaiya
Lal and Sohan Lal son of Jagannath
(ancestors of the plaintiffs' transferers) are
recorded over a total area of 35 49/107
decimals. The revenue records show that
the concerned persons have got forged
entries made therein. It is then pleaded on
behalf of defendant No.1 that through their
former Chairman, they got an application
under Section 39 of the U.P. Land Revenue
Act made for correction of the revenue
records, which was registered as Case No.8
of 1975-76. The application was moved for
correction of records relating to Khasra
Nos.240, 241 and 242, all situate in Village
Neelkanth. Bhagwati Prasad and others
were parties to the said case.

16. It is then pleaded that defendant
No.1 got the aforesaid plot numbers
acquired along with other plot numbers, as
would appear from the order of the Land
Acquisition Officer, Mathura. It is also
pleaded that Bankey Lal, Sohan Lal and
others, who were recorded as tenure
holders were also paid compensation.
Accordingly, the Town Area Committee
was delivered possession over the suit
property on 30.05.1953. It is on account of
connivance with the former Lekhpal that
names of the plaintiffs' predecessors were
entered in the Khewat for the purpose of
extending undue benefit to them. It is the
said defendant's case that the entry relating
to 1376 Fasli is wrong.

17. It is also pleaded that according to
orders passed on 20.12.1975 in Mutation
Case No.8 of 1975-76, the names of
Bhagwati Prasad, Bishan Swarup, Raj
Bahadur, Bankey Lal, Sohan Lal and others
were mutated out and their revision against
the said order was dismissed by the
Additional Commissioner, Agra Division,
Agra vide his order dated 25.08.1976.
Earlier, Village Gadhi Neelkanth was part
of Gram Sabha Koopa and after extension
of the boundaries of the Town Area, the suit
property came to fall within the local limits
of the Town Area. All properties of the
Gaon Sabha stood vested in the Town Area
Committee.

18. It is also the case of defendant
No.1 that in the records, the plaintiffs'
ancestors were never recorded as ones in
possession. The plaintiffs have taken
possession on the basis of a sale deed,
which confers no title on them. According to
defendant No.1, it is evident from the
documentary evidence that plot Nos.240, 241
and 242 had old numbers 139, 131, 132 and
133. It is also the case of defendant No.1 that
the suit property adjoins land that was
acquired for defendant No.1. The plaintiffs
have, in collusion with their vendors, got a
sale deed executed in their favour and on that
flawed basis claimed themselves to be
titleholders of the suit property, a fact which
is absolutely incorrect. The sale deed
executed by the former owners in favour of
the plaintiffs is void and confers no title upon
them. The plaintiffs can neither be owners of
the entire Khasra No.216 nor co-sharers
therein.

19. The plaintiffs got a notice dated
02.12.1985 under Section 80 CPC served
230 INDIAN LAW REPORTS ALLAHABAD SERIES
upon defendant No.1 on incorrect premises,
and without awaiting expiry of the notice
period, instituted the suit. According to
defendant No.1, the Collector of Mathura,
is their Administrator and it is upon his
directions that the suit property has been
handed over to the Police Department. The
decision has been taken in the interest of
the local population, which the plaintiffs
have no right to frustrate by presenting the
instant suit. At the time of institution of the
suit, the plaintiffs were not in possession.
The suit is barred by Section 34 of the
Specific
Relief
Act.
The
suit
is
undervalued. The entire suit property is
worth at least Rs.2,50,000/-. The court-fee
paid is insufficient. The plaintiffs have got
incorrect entries made (in the revenue
records) and appropriate steps to rectify the
records are being taken after seeking
necessary legal advice. It is pleaded that
defendant No.1 does not accept the
plaintiffs' title to the suit property. The suit
has been instituted on incorrect facts, which
ought to be dismissed with costs.

20. Defendant No.4 filed a separate
written
statement
denying
the
plaint
allegations, but admitting the fact that the
suit property is located in Khasra No.216.
It has been denied that any cause of action
has arisen to the plaintiffs to institute this
suit, which according to defendant No.4 is
founded
in
incorrect
premises.
The
plaintiffs are not in ownership possession
of the suit property. They were never
owners of the said property. The plaintiffs'
vendors never had title to the suit property.
It is defendant No.1, who was always the
titleholder of the suit property and in
possession thereof, and now, it is defendant
No.4, who holds possession.

21. According to defendant No.4, the
population
of
Tehsil
Sadabad
has
considerably increased. The Police Station,
that is existing, is very small, which does
not allow work to be done properly. It is in
view of this fact that it was considered
appropriate that the police station be
expanded and a new one constructed. The
Superintendent of Police, for the purpose of
securing some land, invited the attention of
the State Government, represented by the
Collector. Accordingly, defendant No.3 (the
Collector) gave away the suit property to
defendant No.4, because at the relevant
time, defendant No.1 were under the
control of the Collector, who had all
authority to transfer defendant No.1's land
in favour of defendant No.4.

22. In order to construct a new police
station, tenders were invited and a contract
for the purpose was granted for a sum of
Rs.8 lacs in favour of one C.P. Singh
Chaudhary. He was paid out of the settled
sum, under the contract, a sum of Rs.2 lacs.
The contractor has commenced work at site
and laid foundation for the construction of
four rooms, a verandah, a lavatory and a
bathroom. Building materials worth Rs.2
lacs, belonging to the contractor, are lying
stacked at site. The plaintiffs have no
concern with the suit property nor did they
ever hold title or possession of the same.
The plaintiffs have not complied with the
provisions of Section 80 CPC. The
plaintiffs' suit is not maintainable.

23. Here, it may be noticed that
pending suit, the plaintiffs came up with a
case that defendant Nos.2 to 7, in
connivance with defendant No.1, violating
the temporary injunction order, that was
operating in favour of the plaintiffs,
forcibly took possession of the suit
property and have raised construction on
the same, which they have no right to do. In
the circumstances, the plaintiffs are entitled
5 All. Nagar Kshetra Samiti, Sadabad, Mathura Vs. Kanchan Singh & Ors.
231
to possession of the suit property, after
demolition of constructions raised with
liberty to the defendants to carry away the
building material.

24. An amendment to the above effect
was sought by the plaintiffs through an
application, that was granted vide order
dated 29.01.1991. A further amendment
was sought to the relief clause, where after
deleting the relief of permanent prohibitory
injunction, the plaintiffs sought relief of
possession
after
demolition
of
constructions raised by the defendants with
liberty to them to carry away the building
material. Court-fee was paid ad valorem on
the relief of possession.

25. Defendant Nos.1 and 4 have filed
two additional written statements in answer
to the pleas raised on behalf of the plaintiffs
through amendments. Both the defendants in
their additional written statements denied the
amended pleas, including the assertions that
the defendants, by connivance amongst
themselves, have taken possession of the suit
property, in violation of the temporary
injunction by force and raised constructions
thereon. It was pleaded that the suit property's
owner was defendant No.1 and it is the said
defendant, which had given possession to the
Government of U.P. It was also pleaded that
on the suit property, a building to house the
Police Station Sadabad has already been
constructed, wherein the Government have
spent a sum of Rs.5 lacs. It was, therefore,
urged that the plaintiffs are not entitled to
relief of possession.

26. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"(1) Whether the plaintiffs are
owners of the property in dispute?

(2) Whether on the date of
institution of the suit, the plaintiffs were in
possession of the suit property?

(3)
Whether
the
suit
is
undervalued?

(4) Whether the suit is barred by
Section 34 of the Specific Relief Act?

(5) To what relief are the
plaintiffs entitled?

(6) Whether the defendants have
dispossessed the plaintiffs pending suit?

(7)
Whether
the
suit
is
undervalued
and
the
court-fee
paid
insufficient?"

27. On behalf of the plaintiffs, six
witnesses were examined, to wit, Man
Singh, plaintiff No.1, who testified as PW1, Munshi son of Gaffur as PW-2, Udai
Ram, Ahalmad, Civil Court, Mathura was
examined as PW-3, Kishan Swarup son of
Bankey Lal testified as PW-4, Sultan Singh
Pachauri was examined as PW-5 and
Chandrabhan Gautam, Advocate appeared
in the witness-box as PW-6.

28. On behalf of the defendants, four
witnesses were examined: Ram Kishan,
DW-1 and Pusaram Santoshi, DW-2, both
these witnesses being examined on behalf of
defendant No.1; and, Sub-Inspector R.P.
Tyagi and Chandrapal Singh, Inspector C.B.
C.I.D., Agra, were examined as DW-3 and
DW-4, respectively on behalf of defendant
No.4. A wealth of documentary evidence was
produced on behalf of the plaintiffs, details
whereof are summarized in the judgments of
the Courts below; particularly, that of the
Trial Court. Likewise is the position on
behalf of defendant Nos.1 and 4, who too
produced some documentary evidence. It is
not necessary to set forth the summary of the
documentary evidence filed by parties, the
relevant of which would be noticed during
the course of this judgment.
232 INDIAN LAW REPORTS ALLAHABAD SERIES

29. So far as Issue Nos. 3 and 7 are
concerned, the same were disposed of in
terms of an order dated 13.02.1991 with the
issues being answered in favour of the
plaintiffs.

30. Insofar as Issue No.4 is concerned,
the Trial Court held that this issue was not
pressed at the hearing and, therefore,
answered against the defendants.

31. Issue No.2 was answered in favour
of the plaintiffs and against the defendants,
holding that evidence led by the plaintiffs
was stronger and more dependable as
compared to that on behalf of defendants,
which shows for all the reasons assigned,
based on evidence discussed, that it was the
plaintiffs, who were in possession at the
time of institution of the suit.

32. Issue No.1 was also answered for
the plaintiffs and against the defendants
holding, after a very elaborate discussion of
the evidence on record, that the plaintiffs
are owners of 46 9/14 decimals of land out
of the total 61 decimals, and that they are
entitled to be declared so. It was also held
that the Police Department had taken
possession of the suit property without
right, illegally.

33.
Likewise,
Issue
No.6
was
answered in favour of the plaintiffs holding
that the defendants had taken possession of
the suit property after dispossessing the
plaintiffs during pendency of the suit. In
working out the relief, which the Trial
Court dealt with while deciding Issue No.5,
it was held that out of the total area of 61
decimals of plot No.216, the plaintiffs
purchased through the two sale deeds, an
area 56-9/14 decimals. Out of this area,
they transferred 10 decimals in favour of
Ranveer. This has left the plaintiffs with an
area 46-9/14 decimals, of which they are
owners. It was further held that the
plaintiffs are entitled to possession over 469/14 decimals of land out of the suit
property, after demolition of the existing
constructions
raised
thereon
by
the
defendants. The suit was, accordingly,
decreed for possession of 46-9/14 decimals
of land out of the suit property after
dispossessing the defendants therefrom.
The defendants were ordered to deliver
possession of 46-9/14 decimals of land to
the plaintiffs out of the suit property within
two months of the date of the decree and to
do so after removal, within the said time, of
constructions raised thereon. It was also
ordered that constructions that have been
raised over the suit property by defendant
Nos.4 and 7 could be dismantled and the
materials
carried
away
by
the
said
defendants. In the event, the decree was not
carried out within the time allowed, the
plaintiffs would be at liberty to cause the
constructions to be demolished at the cost
of defendant Nos.4 and 7 and recover
possession of the suit property.

34. Defendant No.1 alone appealed the
decree, which was initially presented
before this Court, but on account of
amendment to the Bengal, Agra and Assam
Civil Courts Act, 1887, was sent down to
the District Judge, who was the Appellate
Court of competent pecuniary jurisdiction.
The appeal ultimately came up for hearing
before the Additional District Judge,
Hathras, the Tehsil of Sadabad by then
being included within the territories of the
newly created district of Hathras. The
Additional District Judge vide his judgment
and decree dated 08.10.2007 substantially
affirmed the Trial Court, but modified the
decree only to the extent that after
separating the area of 46 9/14 decimals out
of the suit property, regarding which the
5 All. Nagar Kshetra Samiti, Sadabad, Mathura Vs. Kanchan Singh & Ors.
233
suit for demolition and possession has been
decreed, the part of the constructions raised
by defendant Nos.4 to 7, that fall within the
said area, be valued and the cost thereof
directed to be paid by the plaintiffs to
defendant
Nos.4
to
7,
after
their
dispossession.

35. Aggrieved by the appellate decree,
defendant No.1 has preferred Second
Appeal No.108 of 2008, seeking its
reversal, whereas Second Appeal No.26 of
2020 was preferred by the plaintiffs from
that part of the Lower Appellate Court's
decree, which has directed costs of the
construction illegally raised by defendant
No.4 to be paid by the plaintiffs to
defendant Nos.4 to 7. Second Appeal
No.108 of 2008 was admitted to hearing on
20.07.2012, though instituted much earlier
on 23rd January, 2008, on the following
substantial questions of law:

"(a) Whether the courts below
were justified in not adverting to the
provisions of U.P. Municipalities Act, 1916
wherein every notified area committee has
been assigned the status of a Municipality/
Nagar Panchayat and as such noncompliance
with
the
mandatory
requirements of Section 326 of U.P.
Municipalities Act by the plaintiff could
have at all been ignored?

(b) Whether entry in revenue
records qua the land in dispute as "Pajava"
was not a conclusive proof of automatic
vesting of the land in the defendantappellant/ State and hence the findings
recorded by the courts below on the issue
of title and ownership of the disputed land
against the defendant-appellant are legally
sustainable?"

36. Second Appeal No.26 of 2020
(Second Appeal Defective No.33 of 2017)
was admitted to hearing on 06.01.2020
framing the following substantial questions
of law:

"(i) Whether the court of first
appeal was justified in granting such relief
in favour of Nagar Kshetriya Samiti
Sadabad i.e. defendants to recover the
amount
of
cost
to
the
encroachment/existing construction when
admittedly no counter claim was filed nor
any relief was sought to this effect.

(ii) Since appeal No. 108 of
2008has already been admitted, list this
appeal for analogous hearing."

37. Heard Mr. Kshitij Shailendra,
learned Counsel appearing on behalf of
defendant No.1 and Mr. Preet Pal Rathore,
learned Counsel appearing on behalf of the
plaintiffs. No one appears on behalf of
defendant Nos.2 to 7. Mr. Preet Pal Singh,
learned Counsel has been heard on behalf
of the plaintiffs in support of Second
Appeal No.26 of 2020 and Mr. Kshitij
Shailendra, learned Counsel on behalf of
defendant No.1. No one appears on behalf
of defendant Nos.2 to 7 in this appeal also.

38. It would be apposite to consider
the parties' case in each of the two appeals
separately with reference to the Substantial
Question(s) of Law framed in the relative
appeal.

A. Second Appeal No.108 of
2008

Substantial Question (a)

39. It is submitted on behalf of
defendant No.1 that the plaintiffs have not
complied with the requirements of Section
326 of the Uttar Pradesh Municipalities
Act, 1916 (for short, 'the Act of 1916'). The
learned
Counsel
for
defendant
No.1
234 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that before the institution of a suit
against a Municipality under the Act of
1916, it is imperative that a notice is served
in writing upon the Municipality, indicating
particulars mentioned in sub-Section (1) of
Section 326. After service of notice
contemplated in Section 326(1), a period of
two months must elapse before the suit is
instituted. Attention of the Court has been
drawn to the provisions of Section 326 of
the Act of 1916, which read:

"326.
Suits
against
Municipality or its officers. - (1) No suit
shall be instituted against a Municipality, or
against a member, officer or servant of a
Municipality, in respect of an act done or
purporting to have been done in its or his
official capacity, until the expiration of two
months next after notice in writing has been
in the case of a Municipality, left at its
office, and, in case a member, officer or
servant, delivered to him or left at Iris
office or place of abode, explicitly stating
the cause of action, the nature of the relief
sought, the amount of compensation
claimed, and the name and place of abode
of the intending plaintiff, and the plaint
shall contain a statement that such notice
has been so delivered or left.

(2) If the Municipality, member,
officer or servant shall, before action is
commenced,
have
tendered
sufficient
amends to the plaintiff, the plaintiff shall
not recover any sum in excess of the
amount so tendered, shall also pay all costs
incurred by the defendant after such tender.

(3) No action such as is described in
sub-section (1) shall, unless it is an action
for the recovery of immovable property
or for a declaration of title thereto, be
commenced otherwise than within six
months next after the accrual of the cause
of action

(4) Provided that nothing in subsection (1) shall be construed to apply to
a suit wherein the only relief claimed is
an injunction of which the object would
be defeated by the giving of the notice or
the postponement of the commencement
of the suit or proceeding."

40. It is urged by the learned
Counsel for defendant No.1 that the suit
here was one that was initially instituted
for the relief of permanent prohibitory
injunction alone, but later on converted
into
a
suit
for
demolition
and
dispossession. And, still, no notice under
Section 326 of the Act of 1916 was
served upon defendant No.1, as mandated
by Section 326(1) of the last mentioned
Act. It is urged that it was incumbent for
the plaintiffs to serve a notice under
Section 326 upon defendant No.1, in
order to maintain their action. Learned
Counsel for defendant No.1 has invited
attention of the Court further to the
provisions of Section 3-A(3)(b) of the Act
of 1916. In order to understand the
provisions of Section 3-A(3)(b) aforesaid,
it would be necessary to set forth Section
3-A of the Act of 1916, which reads:

"3A. Municipality for every
transitional area and smaller urban area.
- (1) A municipality constituted under
clause (1) of Article 243-Q of the
Constitution in accordance with Part IX-A
thereof shall, -

(a) for every transitional area, be
known as the Nagar Panchayat;

(b) for every smaller urban area
be known as the Municipal Council.
5 All. Nagar Kshetra Samiti, Sadabad, Mathura Vs. Kanchan Singh & Ors.
235

(2) Every Nagar Panchayat or
Municipal
Council
constituted
under
subsection (1), shall be a body corporate.

(3) Notwithstanding anything in
sub-section (1), -

(a)
every
Municipal
Board
existing
immediately
before
the
commencement of the Uttar Pradesh Urban
Local
Self
Government
Laws
(Amendment) Act, 1994, shall [from such
commencement
and
until
the
first
constitution of the Municipal Council under
this Act as amended by the said Act be
deemed to be a Municipal Council under
the Act;

(b) every notified area committee
constituted under Section 338 or Town
Area Committee constituted under the Uttar
Pradesh Town Areas Act, 1914, as it stood
immediately before the commencement of
the Act referred to in clause (a), shall [from
such commencement and until the first
constitution of the Nagar Panchayat under
this Act, as amended by the Act referred to
in clause (a)] be deemed to be a Nagar
Panchayat under this Act."

41. There is a further submission that
the learned Counsel for defendant No.1 has
made while concluding his arguments on
the first of the two substantial questions of
law. He says that so far as the other
defendants are concerned, they are the State
and its officers, against whom a suit would
not lie without service of a notice under
Section 80 of the Code of Civil Procedure,
1908 (for short, 'the Code'). It is urged that,
even if initially, the relief claimed was one
of permanent prohibitory injunction, no
exemption under sub-Section (2) of Section
80 of the Code was claimed. More so, after
amendment of the plaint, the cause of
action having changed from a suit for
permanent prohibitory injunction into a suit
for demolition and possession, service of
notice under Section 80, based on the
amended cause of action and the amended
plaint, was mandatory. And, in the absence
of service of notice under Section 80 of the
Code, this suit against the other defendants,
that is to say, the State and its various
officers is not maintainable.

42. In answer, Mr. Preet Pal Singh
Rathore, learned Counsel appearing for the
plaintiffs submits that defendant No.1 has
raised this plea for the first time before this
Court. It is pointed out that whereas in
Paragraph No.42 of this defendant's written
statement, there is a traverse about the time
of service of notice under Section 80 of the
Code, there is no pleading either in the
written statement or a ground in the
memorandum of first appeal, regarding
want of the mandatory notice under Section
326 of the Act of 1916. It is argued that the
plea regarding a bar of the suit under
Section 326 of the Act last mentioned, not
being raised in the written statement or
before the Lower Appellate Court, it cannot
be permitted to be raised for the first time
in second appeal. A perusal of the written
statement filed on behalf of defendant No.1
shows that indeed there is no plea raised on
behalf of the said defendant regarding noncompliance with the provisions of Section
326 of the Act of 1916. The only pleading
about the want of a notice is to be found in
Paragraph No.42 of the written statement
dated 07.01.1987. The said plea is to the
effect that defendant No.1 was served with
a notice dated 02.12.1985 on incorrect facts
by the plaintiffs through their Counsel. It
was a notice under Section 80 of the Code
and that the suit was instituted without
waiting for the statutory period mentioned
in the said notice.

43. Now, so far as a notice under
Section 80 of the Code is concerned, that
236 INDIAN LAW REPORTS ALLAHABAD SERIES
relates to the mandatory requirement of
service of a notice as envisaged under subSection (1) of Section 80, when a suit is
instituted against the Government or a
public officer in respect of any act done in
his official capacity. Sub-Section (1)
mandates
that
the
statutory
notice
contemplated under Section 80 of the Code
must be served upon the Government or a
public officer, if it relates to official actions
of such public officer, and a suit can be
instituted after expiry of two months from
date of service of notice in writing at the
office of the specified officer of the
Government, and in the case of a public
officer, delivered to such officer or left at
his office. What the notice must essentially
state is also laid down by sub-Section (1) of
Section 80 of the Code.

44. It must be remarked that a notice
under Section 80 of the Code is not to be
confounded with a notice under Section
326 of the Act of 1916. The object of both
kinds of notices issued under very different
statutes may be similar or even identical.
But, the two are not the same. The
identities of parties entitled to a notice
under Section 80 of the Code and Section
326 of the Act of 1916 are also different. A
notice under Section 80 of the Code, as
already noticed, is mandatory, where an
action is brought against the Government
or one of its officials for an act done in
their official capacity, whereas a notice
under Section 326 of the Act of 1916 is
mandatory,
except
to
the
extent
contemplated
under
sub-Section
(4)
thereof, in the case of a Nagar Palika
Parishad or Nagar Panchayat governed by
the provisions of the Act, last mentioned.

45. There is no quarrel about the fact
that a Town Area Committee constituted
under the Uttar Pradesh Town Areas Act,
1914 by virtue of Section 3-A(3)(b) until
the first constitution of a Municipal
Council, after commencement of the Uttar
Pradesh Urban Local Self-Government
Laws (Amendment) Act, 1994 be deemed
to be a Nagar Panchayat under the Act of
1916. This being so, the defendant No.1
here, a Town Area, would be entitled to
notice under Section 326 of the Act of
1916. But, that is an entitlement under the
law for defendant No.1 before action is
commenced.

46.