# State of U.P. Defendant/ v. Sri Pooran Chand Plaintiff/

- **Citation:** (2019) 3 ILRA 757
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** Second Appeal No. 594 of 1991
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-defendant-v-sri-pooran-chand-plaintiff-44785
- **Pages:** 3

## Headnote

A. Civil Law-Code of Civil Procedure,1908
- Section 80(2) - Waiver of Notice
Held: - Section 80(2) provides provides of
exemption by Legislature from service of
notice under Section 80(1) in cases to obtain
an urgent and immediate relief where due to
urgency purpose of suit will frustrate in
serving the notice Held - In this case the only
Rasta of plaintiff was allegedly obstructed by
defendant so in such case the service of notice
under Section 80(1) C.P.C. was not mandatory
under law. (Para 9)
Second Appeal dismissed (E-5)

## Text

3 All. State of U.P. Vs. Sri Pooran Chand
757
possession it is. In the case on hand, only the
agreement between the plaintiff and the second
defendant has been filed along with the plaint
under Order 7 Rule 14(1). As rightly pointed out
by the learned Senior Counsel for the appellant,
if he is not in possession of the power of
attorney, it being a registered document, he
should have filed a registration copy of the
same. There is no such explanation even for not
filing the registration copy of the power of
attorney. Under Order 7 Rule 14(2) instead of
explaining in whose custody the power of
attorney is, the plaintiff has simply stated "nil". It
clearly shows non-compliance with Order 7
Rule 14(2).

18.
In
the
light
of
the
controversy, we have gone through all the
averments in the plaint. In Para 4 of the
plaint, it is alleged that the second
defendant as agreement-holder of the first
defendant and also as the registered
power-of-attorney holder of the first
defendant executed the agreement of sale.
In spite of our best efforts, we could not
find any particulars showing as to the
documents which are referred to as
"agreement-holder". We are satisfied that
neither the documents were filed along
with the plaint nor the terms thereof have
been
set
out
in
the
plaint.
The
abovementioned two documents were to
be treated as part of the plaint as being
the part of the cause of action. It is settled
law that where a document is sued upon
and its terms are not set out in the plaint
but referred to in the plaint, the said
document gets incorporated by reference
in the plaint. This position has been
reiterated in U.S. Sasidharan v. K.
Karunakaran [(1989) 4 SCC 482] and
Manohar Joshi v. Nitin Bhaurao Patil
[(1996) 1 SCC 169]."

12. In the present case, it is apparent
on the face of the record that when the
suit was filed on 28.01.1998, there existed
no power of attorney in favour of
plaintiff-appellant no. 2. There is also
nothing on record to show that plaintiff
No. 1 represented by the Mahant, had
come forward to verify the plaint and its
contents, or had instituted the suit. The
Courts below have recorded a categorical
finding that the power of attorney was not
produced by plaintiff-appellant No. 2,
either before the Trial Court or before the
Appellate Court. The power of attorney
has not been produced, even before this
Court. The feeble attempt on pleading a
personal right to sue before the lower
Appellate Court has already been dealt
with in the earlier part of this order and
found to be utterly derided of substance.
Under circumstances, the plaint here
taken as a whole, in particular, read with
the requirements of Order VII Rule 14,
does not disclose a cause of action worth
trial. In the considered opinion of this
Court, the plaint has been rightly rejected
under Order VII Rule 11 C.P.C.

13. In the result, this appeal is
dismissed under Order XLI Rule 11
C.P.C.
----------
(2019)11ILR A757

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 594 of 1991

State of U.P. ...Defendant/Appellant
Versus
Sri Pooran Chand
 ...Plaintiff/Respondent

Counsel for the Appellant:
758 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri A.P. Singh, Sri Sudhir Solanki, S.C.

Counsel for the Respondent:
Sri A.K. Banerji

A. Civil Law-Code of Civil Procedure,1908
- Section 80(2) - Waiver of Notice
Held: - Section 80(2) provides provides of
exemption by Legislature from service of
notice under Section 80(1) in cases to obtain
an urgent and immediate relief where due to
urgency purpose of suit will frustrate in
serving the notice Held - In this case the only
Rasta of plaintiff was allegedly obstructed by
defendant so in such case the service of notice
under Section 80(1) C.P.C. was not mandatory
under law. (Para 9)
Second Appeal dismissed (E-5)

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

1. List revised. No one is present for
respondent.

2. The instant appeal has been filed
against impugned judgment and decree
dated 20.12.1990 passed in Civil Appeal
No.86 of 1990 "State of U.P. Vs. Shri
Pooran Chandra and another".

3. Heard Sri Sudhir Solanki, learned
Standing Counsel for appellant-State of
U.P. and perused the record.

4. The brief facts relating to the instant
appeal are that plaintiff-respondent no.1 filed
Civil Suit No.938 of 1987 for prohibitory as
well as mandatory injunction against appellant
which was decreed by trial court vide judgment
and decree dated 29.5.1990. Against the
judgment and decree passed by trial court, the
appellant preferred Civil Appeal No.86 of 1990
before the District Judge, Agra which was
dismissed vide impugned judgment and decree
dated 20.12.1990.

5. The plaintiff's case in brief is that
a piece of land was leased out to him by
Railways/Union of India (which was
impleaded as defendant no.2 but did not
contest and has been impleaded as
respondent no.2) over which he raised
boundary wall and affixed a gate but the
employees of the appellant harassed him
and used to put drums, bricks and woods
over his gate to obstruct his passage and
also raised a wall during pendency of suit
to obstruct his Rasta. Learned trial court
in its findings on issue nos.1, 4 & 5 held
that property leased to plaintiff is part of
land/plot no.289 and not of plot no.316 of
appellant. The appellate court in the
impugned judgment and decree has
clearly observed that from the report of
Commissioner 16-C it is clearly evident
that there is no other way available to the
plaintiff for approaching to and fro the
land leased out to him by Railways
respondent no.2 and since plot no.316 is
alleged to be PWD road so the plaintiffrespondent has every right of egress and
ingress from the gate of his property.

6. Learned counsel for appellant
challenging the findings of two courts
below contended that plaintiff-respondent
has raised constructions over the land
leased to him by Railways and has put a
gate; that he has no right to open the gate
towards the land of defendant-appellant
and has no right to encroach over the land
of
defendant-appellant
by
raising
constructions or otherwise.

7. From perusal of record, I find that
there is no case of defendant-appellant
that plaintiff-respondent has raised any
constructions over the land of defendant
or has encroached over it in any manner.
Since the plaintiff has no other way to and
fro his land, he cannot be stopped from
3 All. Chandra Shekhar (Dead) & Ors. Vs. Shiv Prasad & Ors.
759
using the land leased out to him and there
appears no illegality in the judgments and
decree passed by two courts below.

8. Learned counsel for appellant
contends that the judgments of two courts
below are wrong on facts and law and as
many as 10 substantial questions of law
are involved in the appeal as mentioned in
page 5 & 6 of the memo of appeal. He
pointed out that suit was also barred by
provisions of Section 80 of C.P.C.

9. Upon hearing learned counsel for
appellant and perusal of record, I find that
Section 80(2) provides of exemption by
Legislature from service of notice under
Section 80(1) in cases to obtain an urgent and
immediate relief where due to urgency
purpose of suit will frustrate in serving the
notice. In this case the only Rasta of plaintiff
was allegedly obstructed by defendantappellant so in such case the service of notice
under Section 80(1) C.P.C. was not
mandatory under law as also pleaded by
plaintiff. The findings of two courts below are
concurrent findings of fact based on cogent
reasonings and no illegality or perversity in
above findings could be pointed out by
learned counsel for appellant.

10. In view of discussions made above,
I find that appeal is devoid of merits and for
want of any substantial question of law is
liable to be dismissed in limine.

11. The appeal is dismissed in limine.

12. Interim order, if any, stands
vacated.

13. Let lower court record be sent
back to court below along with a copy of
this order.
----------
(2019)11ILR A759

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 942 of 2016

Chandra Shekhar (Dead) & Ors.
 ...Plaintiffs/Appellants
Versus
Shiv Prasad & Ors.
 ...Defendants/Respondents

Counsel for the Appellants:
Sri Ram Chandra Yadav, Sri Jagdish Lal
Srivastava

Counsel for the Respondents:
Sri Rahul Mishra
A. Land Law-U.P. Zamindari Abolition
and Land Reforms Act, 1951 - Abolition
of zamindari - Joint property - After the
abolition
of
zamindari,
Joint
Hindu
family disintegrated and every individual
member
of
the
joint
hindu
family
became a tenure-holder in his own right
and had to be considered a separate unit
for the exercise of the right of transfer &
could transfer only his share of the
property.
Held:- Father of the plaintiffs namely Lalsa,
alongwith his three sons i.e. the plaintiffs, was
alive on the date when the U.P. Zamindari
Abolition and Land Reforms Act was notified
then as per law, the joint Hindu family
disintegrated after the abolition of zamindari
and every individual became a tenure-holder
in his own right. Therefore, an individual
humidhar could have transferred only his
share of the property. (Para 12)
Second Appeal allowed (E-5)

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