# New Okhla Industrial Development Authority Defendant/ v. Raja Ram Balmiki Plaintiff/

- **Citation:** (2007) 3 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-07
- **Case number:** Second Appeal No. 743 of 1997
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-okhla-industrial-development-authority-defendant-v-raja-ram-balmiki-41131
- **Pages:** 5

## Headnote

Sri. B.D. Mandhyan
Sri. S.C. Mandhyan
Sri. A.K. Singh
Sri. Badri Singh
Sri. Satish Mandhyan

Code of Civil Procedure Section 100second appeal-substantial question of
law-scope
thereof
explained-means
debatable question of law-not previously
settled or decided.

Held: Para 7

The question of law must be debatable,
not previously settled by law of the land
or a binding precedent and answer to the
same will have material bearing as to the
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
rights of the parties before the court.
The foundation is to be laid in the
pleadings and the questions are emerged
from sustaining findings of fact arrived
at by the court after the appraisal of
evidence
Case Law discussed:
2005(7) SCC-60
2005(2) SCC-500
2001(3) SCC-179

## Text

3 All] NOIDA V. Raja Ram Balmiki
885
(b) the main relief is cognizable by the
civil court the suit would be cognizable by
the civil court the suit would be
cognizable by the civil court only and the
ancillary reliefs, which could be granted
by the revenue court may also be granted
by the civil court.
The above principle will apply also
to a suit for injunction and demolition
relating to agricultural land and brought
against a trespasser. Where the revenue
court was not competent to grant all the
reliefs arising out of one and the same
cause of action and the main relief was
that of injunction and demolition the suit
would lie in the civil court.

9. On analysis of Full Bench
guidelines quoted above, it is evident that
the two courts were of consistent view
that the revenue records clearly establish
the right and possession of the defendants
and unless and until the plaintiff's right or
even
possession
is
not
established,
injunction could not be granted, therefore
these questions could be adjudicated only
in a suit for declaration. No doubt the
relief of injunction was claimed in the suit
but the main relief could not be ignored.
In fact the injunction was only an
ancillary relief which could be granted
only by a revenue court. The findings by
the two courts below that the suit was not
maintainable since the question of title
and respective right was to be determined.
In the circumstances, I do not find that the
substantial question of law raised in the
instant appeal worth consideration, the
findings to the contrary by the two courts
below do not call for interference and can
not
be
interfered
in
exercise
of
jurisdiction under Section 100 C.P.C.

The suit instituted for possession was
held not maintainable by the civil court
after recording its conclusion that since
the plaintiff has not been able to establish
possession and there is neither any
document nor any material to hold title in
favour of the plaintiff. These questions
are to be adjudicated by the revenue
courts which in fact is still pending. In
view of what has been stated upon, there
is no substance in the submissions made
by the learned counsel. The appeal lacks
merit and is accordingly dismissed. Cost
on parties.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2007

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 743 of 1997

New
Okhla
Industrial
Development
Authority
 ...Defendant/Appellant
Versus
Raja Ram Balmiki ...Plaintiff/Respondent

Counsel for the Appellant:
Sri. U.S. Awasthi

Counsel for the Respondent:
Sri. B.D. Mandhyan
Sri. S.C. Mandhyan
Sri. A.K. Singh
Sri. Badri Singh
Sri. Satish Mandhyan

Code of Civil Procedure Section 100second appeal-substantial question of
law-scope
thereof
explained-means
debatable question of law-not previously
settled or decided.

Held: Para 7

The question of law must be debatable,
not previously settled by law of the land
or a binding precedent and answer to the
same will have material bearing as to the
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
rights of the parties before the court.
The foundation is to be laid in the
pleadings and the questions are emerged
from sustaining findings of fact arrived
at by the court after the appraisal of
evidence
Case Law discussed:
2005(7) SCC-60
2005(2) SCC-500
2001(3) SCC-179

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri U.S. Awasthi, learned
counsel for the appellant and Sri B. D.
Mandhyan, Senior Advocate, Assisted by
Sri S.C. Mandhyan, Sri A.K. Singh and
Sri Badri Singh Advocates for the
plaintiff-respondent.

2. The plaintiff-respondent instituted
a suit No. 974 of 1991 against the
defendant-appellant for injunction in
respect of Plot No. 40 area Sq. yards
situated in Khasra No. 16-M Village
Mamura, Pargana and TehsiI Dadri,
District Ghaziabad (hereinafter referred as
disputed land). The plaintiff claimed his
title on the basis of allotment made by
Land Management Committee in the year
1974 to one Hukum Singh as he was a
member of Scheduled Caste Community.
Hukum Singh aforesaid executed a sale
deed on 23.5.1995 for an amount of
Rs.45,000/- in favour of the plaintiff and
subsequent to the sale deed, the plaintiff is
owner in occupation. Since the disputed
land is in the vicinity. If Sector 59 of
NOIDA authority (defendant-appellant),
they are interfering in the plaintiffs
construction over the disputed land and
the employees of Noida have demolished
the construction of a number of allottees,
including plaintiff. NOIDA has given
alternative plots to them but the plaintiff
was the only allottee who has been
singled out and in the circumstances, a
relief was added by means of amendment
application for allotment of an alternative
plot. NOIDA filed its written statement
and denied the plaint allegations. The plea
taken by the defendant appellant was that
the land was acquired by the State
Government for NOIDA and it did not
belong to Gaonsabha and, therefore,
allotment to Hukum Singh can not be
made, besides Gaonsabha and State
Government have not been made as a
necessary party. The suit was barred by
Section 34 and 41 of the Specific Relief
Act as well as Section 331 and 331A of
the Zamindari Abolition & Land Reforms
Act. As many as six issues were framed.
The question of non joinder of party issue
no. 3 which was decided against the
appellant. Issue no. 4 was also decided in
favour of the plaintiff that the suit is not
barred by Section 34 and 41 of the
Specific Relief Act. Issue no. 5 was
decided against the defendant-appellant
and the trial court came to a conclusion
that the suit is not barred by Section 331
and 331A of the Zamindari Abolition &
Land Reforms Act. Issue no. 1 was
decided in favour of the plaintiff and the
trial court recorded a categorical finding
that the plaintiff is owner in occupation
and finally the suit was decreed and
NOIDA was injuncted from making any
interference in the peaceful occupation
and construction thereon. The appeal
against the judgment and decree of the
trial court was also dismissed. The
appellate court affirmed the findings of all
the issues and recorded its conclusion in
favour of the plaintiff. However, the
decree of the trial court was amended to
the extent that mandatory injunction was
granted against the defendant to allot an
alternative plot in Sector 66 Noida along
with other allottees and only thereafter
3 All] NOIDA V. Raja Ram Balmiki
887
Noida will be entitled to use the disputed
land of the plaintiff in accordance with his
Master Plan. Substantial question of law
raised in the instant appeal are as follows:

1.
Whether a person can transfer a
better title than he has?
2.
 Whether the suit is liable to be
dismissed for non impleadment of
proper and necessary parties?
3.
Whether the relief of permanent
injunction being the main relief can
be granted in the alternative relief of
mandatory injunction by way of
amendment
being
barred
of
limitation and not paying the proper
court fees taking the right of the
appellant?
4.
Whether the land has been properly
identified and as such the suit is
liable to be dismissed?

Sri
U.S.
Awasthi
canvassed
substantial question of law no. 1.

3. After hearing the respective
counsels at length and going through two
judgments, it is clear that the disputed
land
was
never
acquired
nor
any
compensation has been paid to any of the
allottees who were 18 in numbers
including the plaintiff-respondent. The
other 17 allottees have been given
alternative plots in Sector 66 except the
plaintiff. The courts below have arrived at
a conclusive finding of fact that the
plaintiff-respondent
is
owner
in
occupation. It was only because NOIDA
came up with the plea that the land in
question is creating hindrance in the
development
by
the
Development
Authority, the lower appellate court
amended the judgment and decree to the
extent of permitting for an alternative
plot. The other 17 allottees who were also
allotted
in
Secto-66,
were
given
alternative plots and therefore the plaintiff
was also entitled to a similar relief. The
question raised in this appeal that the
plaintiff could not acquire any right by
means of sale deed executed by Power of
Attorney of Hukum Singh who was the
original allottee, is without any substance.
The courts below have recorded a
categorical finding of fact that the land
was allotted long back.

4. During the course of argument,
Sri Awasthi raised another question of
law that since the U.P.Z.A. & L.R.
Act/Rules imposes a specific bar that in
the
event,
construction
within
the
stipulated period is not made, the disputed
land can not be transferred to a third
party. Rule 115 Q provides that whoever
is allotted a land for building a house, if
he fails to do so within three years from
the date of allotment or uses it for a
purpose other than it has allotted, his right
shall be extinguished, the land will be
taken over by the Land Management
Committee. Rule 115 R provides that
whenever a house is built on such land
allotted
by
the
Land
Management
Committee then it can only be transferred
after lapse of ten years. For a ready
reference, two Rules are quoted below:

"115-Q. The person to whom the
housing site is allotted shall be required
to build a house and begin to reside in it
or to use it for the purpose for which it
was built within three years from the date
of allotment: If he fails to do so or uses it
at any time for a purpose other than that
for which it was allotted his right shall be
extinguished and the site may be taken
over by the Land Management committee.

Provided that in the case of a person
belonging
to
Scheduled
Caste
or
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Scheduled Tribe the aforesaid time limit
for building of the house shall not apply.

115-R. (1) Where any land or site is
allotted in accordance with rules 115-L to
115-Q and house is built thereon, then
subject to the provisions of sub-rule (2),
the allottee shall have no right to transfer
such land, site or house within a period of
ten years from the date of the allotment:

5. In the instant case, the plaintiff
belongs to Scheduled Caste and therefore,
the bar imposed by Rule 115Q will not be
applicable in the case of the plaintiff. It is
also to be noted that the pleadings of the
plaintiff was specific that whenever he
raised
constriction,
the
defendantappellant demolished the constructions
and was not permitting the allottee to
make
any
construction
whatsoever.
Besides, it is also to be noted that the
allotment was in the year 1974 and the
sale deed was executed in the year 1995
and therefore, the argument of the learned
counsel for the appellant that the transfer
made in favour of the plaintiff gives no
right to him for the reason that the
transferor could not transfer a better title
than he himself had is devoid of
substance.

6. In the facts and circumstances, I
do not find any substantial question of
law worth consideration in this second
appeal. Besides, there is yet another fact
which is not disputed. An application
dated
11.11.1999
supported
by
an
affidavit dated 29.10.1999 filed by Raja
Ram Balmiki, respondent is brought to
my notice by Mr. Mandhyan. It is stated
in paragraph 4 that during pendency of
the appeal, the Secretary NOIDA, as per
his report dated 25.9.1996 has considered
the case of the plaintiff-respondent and
has approved the allotment of alternative
plot No. 12 in Sector 66 having an area
150 Sq. meter as it has been done in the
case of other 17 allottees similarly placed.
Copy of the report of the Secretary dated
01.10.1996 is also annexed with the
affidavit.
The
statement
of
DW1Nathuram Lekhpal also clearly shows
that the alternative plots to the 18
Scheduled Caste allottees have been
allotted by NOIDA and, therefore, I do
not see any reason why the decree of the
two Courts below can not be given effect
to by the NOIDA. The judgment of the
two courts below do not suffer from any
infirmity and raises any substantial
question of law. The questions raised in
this appeal do not exist and do not
confirm and stand the test laid down by
this Court as Well as the Apex Court in a
series of decisions.

7. The Apex Court in the case of
Rajeshwari Vs. Puran Indoria (2005) 7
SCC, 60. has elucidated and explained the
term "Substantial question of law" it was
held that the proper test for determination
whether question of law raised in a case is
substantial and would affect rights of the
parties, if so whether it is either an open
question in the sense it was not finally
settled by Hon'ble Supreme Court or
Privy Council or federal court, or is not
free from difficulty or calls for discussion
or alternative views. Similar view was
expressed by the Apex Court in the case
of Govindaraju Vs. Mariamman (2005) 2
SCC page 500 as well as Santosh Hazari
Vs. Purushottam Tiwari (2001) 3 SCC
page 179. The question of law must be
debatable, not previously settled by law of
the land or a binding precedent and
answer to the same will have material
bearing as to the rights of the parties
before the court. The foundation is to be
laid in the pleadings and the questions are
3 All] Smt. Sangeeta and another V. Mange Ram
889
emerged from sustaining findings of fact
arrived at by the court after the appraisal
of evidence.

8. In view of the above decisions, I
am not inclined to interfere as no
substantial question of law arises worth
consideration in the instant appeal. The
second
appeal
lacks
merit
and
is
accordingly dismissed. Cost on parties.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2007

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No. 3110 of 2003

Smt. Sangeeta and another

 ...Defendant/Appellant
Versus
Mange Ram

...Respondent

Counsel for the Appellant:
Sri. B. Malik

Counsel for the Respondent:
Sri. A.K. Singh
Sri. V.K. Singh
Sri. K.C. Tripathi

Hindu Guardianship and Wards Act 1890Section -7-custody of minor child-after
disappearance
of
the
father-mother
remarried-since 12 years the minor
residing with his maternal uncle-claim by
grandfather-allowed by the trail Court
considering largest party holdings-but
ignored the welfare of the minor-the
grandfather never given any financial
assistance-or gift at any occasion-minor
getting proper education in English
medium-no allegation of negligence in
his maintenance-cannot be uprootedapplication for custody of minor by
grandfather-rejected.

Held: Para 8

At this juncture it was rightly pointed out
by the appellant's counsel that not a
single shell was ever shed by the
respondent towards the maintenance of
the minor. The facts as they stood today
there is no justification to grant the
relief claimed by the respondent to have
the custody of minor Ashu. The welfare
of minor is with the appellant no. 2
presently wherein he is happily passing
off his childhood and getting proper
education, fooding and-lodging with no
complaint.

(Delivered by Hon'ble Prakash Krishna, J.)

1. This is an unfortunate litigation.
The two parties are fighting for the
custody of minor Ashu. The appellant No
1. is the mother; while the appellant No.
2. is the maternal uncle. The sole
respondent is grandfather of the minor.
The appellant No 1 was married with
Brajveer Singh son of the sole respondent
as per Hindu rites on 14th of March, 1994.
The minor in question who is male child
was born on 18th of April, 1995 out of this
wedlock. For certain reasons the father
and mother of the minor could not pull on
well
together
and
litigation
started
between them. Brajveer Singh, father of
the minor is missing since 10th of June,
1998 and since then he has not returned
home. A petition for divorce on the basis
of cruelty being case No.787 of 1998 was
instituted by Smt. Sangeeta, the appellant
no.1 herein wherein an exparte decree
dated 5th of March, 1999 has been passed.
It has been stated that the minor is
residing with his mother and the mother
has been remarried on 18th of January,
1999 and the minor is residing with his
maternal uncle, the appellant No.2 herein.