# Sushil Kumar Kathooriya Revisionist v. Span Infrdevelopers Pvt. Ltd

- **Citation:** (2023) 3 ILRA 854
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Civil Revision No. 185 of 2017
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-kathooriya-revisionist-v-span-infrdevelopers-pvt-ltd-49861
- **Pages:** 7

## Headnote

Civil Law - Constitution of India - Article
226, - Civil Procedure Code - Order - 7,
Rule - 11, 11(d) - Specific Relief Act, -
Section - 31, 38 - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section - 229-B, 331- Civil Revision -
defendant
revisionist
is
a
third
party
-
questioning the impugned order - court below
rejected the Application of revisionist preferred
under Order 7 Rule 11 of CPC, claiming that the
suit was barred by the U.P.Z.A. & L.R. Act and
the Specific Relief Act - Suit for permanent
injunction - filed on the basis of agreement to
sale & letter of possession - court finds that,
defendant is not claiming ownership over the
property in the suit - and a suit for permanent
injunction can be maintained on the basis of
possession and possessory title - held, when
there is a mixed question of fact and law, it can
only be decided after taking evidences of the
parties - therefore, impugned order does not
suffer
from
any
illegality
or
infirmity
-
accordingly, the revision is liable to be
dismissed. (Para - 13, 14, 15)

Civil Revision Dismissed. (E-11)

List of Cases cited: -

## Text

854 INDIAN LAW REPORTS ALLAHABAD SERIES
two sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper with
the evidence or influence any witness
during the trial.

(ii) The applicant will appear before
the trial court on the date fixed, unless
personal presence is exempted.
----------
(2023) 3 ILRA 854
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 185 of 2017

Sushil Kumar Kathooriya ...Revisionist
Versus
Span Infrdevelopers Pvt. Ltd.
 ...Respondent

Counsel for the Revisionist:
Sri Santosh Kumar Mishra

Counsel for the Respondent:
Sri Tarun Agarwal, Sri Kshitij Shailendra

Civil Law - Constitution of India - Article
226, - Civil Procedure Code - Order - 7,
Rule - 11, 11(d) - Specific Relief Act, -
Section - 31, 38 - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section - 229-B, 331- Civil Revision -
defendant
revisionist
is
a
third
party
-
questioning the impugned order - court below
rejected the Application of revisionist preferred
under Order 7 Rule 11 of CPC, claiming that the
suit was barred by the U.P.Z.A. & L.R. Act and
the Specific Relief Act - Suit for permanent
injunction - filed on the basis of agreement to
sale & letter of possession - court finds that,
defendant is not claiming ownership over the
property in the suit - and a suit for permanent
injunction can be maintained on the basis of
possession and possessory title - held, when
there is a mixed question of fact and law, it can
only be decided after taking evidences of the
parties - therefore, impugned order does not
suffer
from
any
illegality
or
infirmity
-
accordingly, the revision is liable to be
dismissed. (Para - 13, 14, 15)

Civil Revision Dismissed. (E-11)

List of Cases cited: -

1. Kamla & ors. Vs K.T. Ishwara & ors., (2008)
12 SCC 661,

2. Iqbal Basith & ors. Vs N. Subbalakshmi &
ors., (2021) 2 SCC 718,

3. Rame Gowda (dead) by L.Rs Vs M V Naidu
(dead) by L.Rs & ors., (2204) 1 SCC 769,

4. Anathula Sudhakar Vs P. Buchi Reddy, (2008)
4 SCC 594,

5. Nair Service Society Ltd. Vs K.C. Alexander &
ors., (1968) 3 SCR 163 : AIR 1968 SC 1165,

6. Popat and Ketecha Property Vs SBI Staff
Assessment, (2005) 7 SCC 510

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This revision has been preferred
against the order dated 23.1.2017 passed by
Civil Judge (S.D.) Bareilly, in original suit
no. 12 of 2017 (Span Infra Developers Pvt.
Limited Vs. Sushil Kumar Kathooriya) by
which learned Court below has rejected the
application 36A moved by the defendants
under Order 7 Rule 11 CPC.

2. In brief, facts of the case are that
the
plaintiff
Span
Infra
Developersopposite party no. 1 filed the aforesaid suit
against the defendant-revisionist for a relief
of permanent injunction in respect of
property shown by letters (v u x c) in the
3 All. Sushil Kumar Kathooriya Vs. Span Infradevelopers Pvt. Ltd.
855
plaint map. As per the plaint, 1/5th of the
total area of gata no. 14 area 4 bigha 7
biswa, gata no. 15 area 9 biswa, gata no. 16
area 17 biswa, gata no. 17 rakabai 10
biswa, gata no. 18 area 13 biswa, gata no.
19 area 13 biswa, gata no. 20/1 area 13
biswa, gata no. 21 area 9 biswa, gata no.
22/1 area 8 biswa, gata no. 23/1, area 1
bigha, gata no. 24/1 area 2 biswa 10
biswansi total 30100 yard of i.e. 6020
square yard was under the ownership and in
possession of Laxmi Sahakari Awas Samiti
Ltd. through Satish Kumar Agrawal as
secretary. This land was purchased by three
sale-deeds from its previous owners in the
year 1986 and the name of the society was
also mutated. On the basis of consent and
mutual oral partition, the society came into
possession of the property shown by letters
Ka Kha Ga and Gha in the plaint map.
Apart from this, the society had also got
some property of gata no. 23/1 on the east
side of the road which has also been sold
by the society.

3. On 14.6.2005 through registered
sale deed society sold an area of 1315.87
square yard to Sarnath Infrastructure Pvt.
Limited, Bareilly, after getting adequate
consideration
and
also
delivered
the
possession of the sold land which is shown
by the letters M, N, G and Gha.

4. Sarnath Infra. Pvt. Ltd. executed a
registered agreement for sale on 12.9.2012
for an area of 815.44 square yard, shown by
the letter A, N, Ga & Ba in favour of the
plaintiff. As per term no. 2 of the agreement
for sale, Sarnath Infra. Pvt. Ltd. had to raise
boundrywall for the property in suit before
executing the sale-deed in favour of the
plaintiff. Since it could not be done so,
therefore, Sarnath Pvt. Ltd. delivered the
possession of the said land on 29.10.2012 by
the letter of possession and on the request of
the plaintiff, it was also notarized on
1.11.2012. Since then the plaintiff is in
possession of the property in suit of area of
815.44 square yard and for the protection of
the property it has also made some
construction thereon.

5. Defendant is a land grabber and a
mafia type of person who has no concern
with the property in suit even then defendant
with some unsocial elements on 5.1.2017
reached on the property in suit and tried to
dismantle the constructions and occupy the
land in suit forcefully. After getting the
information from the security guard, the
plaintiff reached on the spot and anyhow got
stopped such illegal activities. The defendant
left the place but threatened that he will come
again and shall take possession of the
property in suit. The matter was reported to
the police who did not help the plaintiff
saying it to be a civil matter. Hence, the cause
of action arose and the suit was instituted.

6. The revisionist-defendant appeared in
the case and moved an application 36 Ka
under Order 7 Rule 11 CPC raising the
question that the suit is barred by Section
229-B and 331 of the U.P.Z.A.& L.R. Act.
The name of the plaintiff is neither recorded
in the revenue record, nor in the agreement
for sale, there is averment of delivery of
possession. The notarized letter of delivery of
possession 24C is a forged document. The
plaintiff can file a suit only if the execution of
sale-deed is in his name. The suit is barred by
Section 31 and 38 of the Specific Relief Act.
The plaintiff has not come with clean hands.
Neither balance of convenience is in favour
of the plaintiff nor any irreparable injury is
caused to the plaintiff, therefore, the plaint be
rejected.

7. Plaintiff filed objection 56C and
opposed the application and contended that
856 INDIAN LAW REPORTS ALLAHABAD SERIES
the suit is not barred by the provisions of
U.P.Z.A. & L.R. Act and since long time
the property in suit is a residential land and
the agricultural works are not being done.
There are constructions over the property in
suit. The suit has been filed on the basis of
possession
hence
the
application
be
rejected.

8. The learned trial Court referred the
provisions of Order 7 Rule 11 CPC and
concluded that on the basis of agreement
for sale and letter of possession, the suit
can be maintained and at this stage it can
not be said that the letter of possession 24
C is a forged document and conclusion can
be drawn only after taking evidence of the
parties. The learned Court below has also
noted that there is no dispute about the fact
that
Sarnath
Infrastructure
Pvt.
Ltd.
Bareilly has executed an agreement for sale
in favour of the plaintiff. The suit has been
filed on the basis of agreement for sale and
on the basis of possession, therefore, it does
not appear that the suit is barred by the
provisions of U.P.Z.A & L.R. Act and
Specific Relief Act.

9. The learned Court below relied on
the judgment of Kamla and Others VS.
K.T. Ishwara and others, (2008) 12 SCC
661, wherein it has been held that the scope
of Order 7 Rule 11 (d) CPC is very limited;
at this stage merit of the case can not be
looked into. Accordingly, the learned Court
below rejected the application under Order
7 Rule 11 CPC.

10. This revision was entertained and
notice was issued to opposite party-plaintiff
who filed counter affidavit no. 60549 of
2017 reiterating the averments of the plaint
and the objection and has denied the
averments of the application moved by the
defendant under Order 7 Rule 11 CPC and
it has also been averred that the property in
suit shall proceed under the Indian Stamp
Act 1899 and by order dated 31.3.2006, the
Deputy Commissioner (Stamp) has clearly
held that the property in question was a
residential property; it is well settled law
that while deciding the application under
Order 7 Rule 11 CPC the Court can only
rely upon the averments made in the plaint.
If for the sake of argument it is accepted
that the property in suit is an agricultural
land even then the suit filed by the plaintiff
-opposite party was maintainable before the
Civil Court on the ground of the principles
of relief sought. Copy of the agreement for
sale and delivery of possession alongwith
order of Deputy Commissioner has been
annexed with the counter affidavit.

11. From the perusal of record, it
transpires that the defendant-revisionist has
not claimed the property in suit on the basis
of ownership or possession. At this stage
only averment of the plaint has to be seen.
Prima-facie it is not in dispute that the
property in suit was purchased by Laxmi
Sahkari Awas Samiti Limited in 1986 and
its name was not mutated and the property
in suit was not partitioned by way of
consent and mutual oral partition. It is also
prima-facie
established
that
Laxmi
Sahakari Awas Samiti sold the area of
1315.87 square yard on 14.6.2005 to
Sarnath Infrastructure Private Limited,
Bareilly, through registered sale-deed. It is
also prima-facie established that Sarnath
Infrastructure Private Limited executed an
agreement for sale on 12.9.2012 in respect
of the property in suit of an area of 815.44
square yard and also executed a notarized
deed
of
delivery
of
possession
on
29.10.2012 in favour of the plaintiff. It is
also noteworthy that neither Sarnath
Infrastructure Private Limited nor Laxmi
Saharanpur Awas Samiti had any objections
3 All. Sushil Kumar Kathooriya Vs. Span Infradevelopers Pvt. Ltd.
857
regarding the possession, agreement for
sale and letter of delivery of possession
executed in favour of the plaintiff. Though
the suit for permanent injunction can be
filed on the basis of records of right but a
suit for permanent injunction can also be
maintained on the basis of possessory title
atleast against a third person.

12. In Iqbal Basith and Others Vs.
N.Subbalakshmi and Others, (2021) 2
SCC 718, it has been held that "suit for
permanent injunction can be maintained on
the basis of possession and possessory
title."

In Rame Gowda (dead) by L.Rs Vs. M
V Naidu (dead) by L.Rs and Other, (2204)
1 SCC 769, it is held that a person in
possession of land in assumed character of
owner of exercising peaceably the ordinary
right of ownership has a perfectly good title
against all the world but the rightful owner.
When the facts disclosed no title in either
party, possession alone decides. The latine
maxim "possessio contra omnes valet
praeter eur cuei ius sit possessionis is
important." In the absence of proof of
better title, possession or prior peaceful
settled possession is itself evidence of title.
Law presumes the possession to go with the
title unless rebutted. The Apex Court
referred the following part of Salmond's
book on jurisprudence and following
judicial precedents which are as under:

5.Salmond states in Jurisprudence
(Twelfth Edition), "few relationships are as
vital to man as that of possession, and we
may expect any system of law, however
primitive, to provide rules for its protection.
. . . . . . Law must provide for the
safeguarding of possession. Human nature
being what it is, men are tempted to prefer
their own selfish and immediate interests to
the wide and long-term interests of society
in general. But since an attack on a man's
possession is an attack on something which
may be essential to him, it becomes almost
tantamount to an assault on the man
himself; and the possessor may well be
stirred to defend himself with force. The
result is violence, chaos and disorder." (at
pp. 265, 266).

"In English Law possession is a good
title of right against anyone who cannot
show a better. A wrongful possessor has the
rights of an owner with respect to all
persons except earlier possessors and
except the true owner himself. Many other
legal systems, however, go much further
than this, and treat possession as a
provisional or temporary title even against
the true owner himself. Even a wrongdoer,
who is deprived of his possession, can
recover it from any person whatever, simply
on the ground of his possession. Even the
true owner, who takes his own, may be
forced in this way to restore it to the
wrongdoer, and will not be permitted to set
up his own superior title to it. He must first
give up possession, and then proceed in due
course of law for the recovery of the thing
on the ground of his ownership. The
intention of the law is that every possessor
shall be entitled to retain and recover his
possession, until deprived of it by a
judgment according to law." (Salmond,
ibid, pp. 294-295) "Legal remedies thus
appointed for the protection of possession
even
against
ownership
are
called
possessory, while those available for the
protection of ownership itself may be
distinguished as proprietary. In the modern
and medieval civil law the distinction is
expressed
by
the
contrasted
terms
petitorium
(a
proprietary
suit)
and
possessorium
(a
possessory
suit)."
(Salmond, ibid, p.295)

6. The law in India, as it has
developed, accords with the jurisprudential
858 INDIAN LAW REPORTS ALLAHABAD SERIES
thought as propounded by Salmond. In
Midnapur Zamindary Co. Ltd. Vs. Kumar
Naresh Narayan Roy and Ors. 1924 PC
144, Sir John Edge summed up the Indian
law by stating that in India persons are not
permitted to take forcible possession; they
must obtain such possession as they are
entitled to through a Court.

7.
The
thought
has
prevailed
incessantly, till date, the last and latest one
in the chain of decisions being Ramesh
Chand Ardawatiya Vs. Anil Panjwani
(2003) 7 SCC 350. In-between, to quote a
few out of severals, in Lallu Yeshwant
Singh (dead) by his legal representative Vs.
Rao Jagdish Singh and others (1968) 2
SCR 203, this Court has held that a
landlord did commit trespass when he
forcibly entered his own land in the
possession of a tenant whose tenancy has
expired. The Court turned down the
submission that under the general law
applicable to a lessor and a lessee there
was no rule or principle which made it
obligatory for the lessor to resort to Court
and obtain an order for possession before
he could eject the lessee. The court quoted
with approval the law as stated by a Full
Bench of Allahabad High Court in Yar
Mohammad Vs. Lakshmi Das (AIR 1959
All. 1,4), "Law respects possession even if
there is no title to support it. It will not
permit any person to take the law in his
own hands and to dispossess a person in
actual possession without having recourse
to a court. No person can be allowed to
become a judge in his own cause." In the
oft- quoted case of Nair Service Society
Ltd. Vs. K.C. Alexander and Ors. (1968) 3
SCR 163, this Court held that a person in
possession of land in assumed character of
owner
and
exercising
peaceably
the
ordinary rights of ownership has a
perfectly good title against all the world
but the rightful owner. When the facts
disclose no title in either party, possession
alone decides. The court quoted Loft's
maxim 'Possessio contra omnes valet
praeter eur cui ius sit possessionis (He that
hath possession hath right against all but
him that hath the very right)' and said, "A
defendant in such a case must show in
himself or his predecessor a valid legal
title, or probably a possession prior to the
plaintiff's and thus be able to raise a
presumption prior in time.

In Krishna Ram Mahale (dead) by his
Lrs. Vs. Mrs. Shobha Venkat Rao (1989) 4
SCC 131, it was held that where a person is
in settled possession of property, even on
the assumption that he had no right to
remain on the property, he cannot be
dispossessed by the owner of the property
except by recourse to law. In Nagar Palika,
Jind Vs. Jagat Singh, Advocate (1995) 3
SCC 426, this Court held that disputed
questions of title are to be decided by due
process of law, but the peaceful possession
is to be protected from the trespasser
without regard to the question of the origin
of the possession. When the defendant fails
in proving his title to the suit land the
plaintiff can succeed in securing a decree
for possession on the basis of his prior
possession against the defendant who has
dispossessed him. Such a suit will be
founded on the averment of previous
possession
of
the
plaintiff
and
dispossession by the defendant.

In Nagar Palika, Jind Vs. Jagat Singh,
Advocate (1995) 3 SCC 426, this Court
held that disputed questions of title are to
be decided by due process of law, but the
peaceful possession is to be protected from
the trespasser without regard to the
question of the origin of the possession.
When the defendant fails in proving his title
to the suit land the plaintiff can succeed in
securing a decree for possession on the
basis of his prior possession against the
3 All. Sushil Kumar Kathooriya Vs. Span Infradevelopers Pvt. Ltd.
859
defendant who has dispossessed him. Such
a suit will be founded on the averment of
previous possession of the plaintiff and
dispossession by the defendant.

In Fakirbhai Bhagwandas and Anr. Vs.
Maganlal Haribhai and Anr. AIR 1951
Bombay 380 a Division Bench spoke
through Bhagwati, J. (as his Lordship then
was), and held that it is not necessary for
the person claiming injunction to prove his
title to the suit land. It would suffice if he
proves that he was in lawful possession of
the same and that his possession was
invaded or threatened to be invaded by a
person who has no title thereof. We
respectfully agree with the view so taken.
The High Court has kept the question of
title open. Each of the two contending
parties would be at liberty to plead all
relevant facts directed towards establishing
their titles, as respectively claimed, and
proving the same in duly constituted legal
proceedings. By way of abundant caution,
we clarify that the impugned judgment
shall not be taken to have decided the
question of title to the suit property for or
against any of the contending parties."

In Anathula Sudhakar v. P. Buchi
Reddy, (2008) 4 SCC 594, it has been held
that-

"the respondent having succeeded in
proving possession over the suit property,
and no evidence having been led by the
petitioners to indicate to the conrary, or
that the possession of the suit property by
the respondent was wrongful, a simplicitor
suit
for
injunction
against
forcible
dispossession was maintainable without
having to seek any titular rights over the
suit property.

In Nair Service Society Ltd. v. K.C.
Alexander, AIR 1968 SC 1165, it has been
held that:-

"this Court ruled that when the facts
disclose no title in either party, possesion
alone decides. It was further held that if
Section 9 of the Specific Relief Act, 1877
(corresponding to the present Section 6) is
employed, the plaintiff need not prove title
and the title of the defendant does not avail
him. When, however, the period of six
month has passed, questions of title can be
raised by the defendant and if he does so
the plaintiff must establish a better title or
fail. In other words, such a right is only
restricted to possession in a suit under
Section 9 of the Specific Relief Act
(corresponding to the present Section 6) but
does not bar a suit on prior possession
within
12
years
form
the
date
of
dispossession, and title need not be proved
unless the defendant can provide one."

13. The defendant-revisionist is a
third party and has not been party to the
sale-deeds and letter of the delivery. Till
now he has not produced any deed of title
about the property in suit, therefore, this
Court is of the opinion that in such
circumstances the suit of the plaintiff can
be maintained against the defendant. Since
the defendant is not claiming ownership
over the property in the suit, it is not open
for him to challenge the suit on the basis of
Order 7 Rule 11 CPC. It is also pertinent to
mention that sometimes when there is a
mixed question of fact and law, it can only
be decided after taking evidences of the
parties. The power under Order 7 Rule 11
CPC can be exercised at any stage by the
trial Court.

14. In Popat and Ketecha Property
Vs. SBI Staff Assessment, (2005) 7 SCC
510, it has been held that "disputed
question can not be contested in the
application under 7 Rule 11 CPC."
860 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Thus, on the basis of aforesaid
discussions this Court is of the considered
view that the the impugned order does not
suffer from any illegality or infirmity. The
revision is devoid of merit and is liable to
be dismissed.

16. Accordingly, the revision is
dismissed and the impugned order is
affirmed. The stay order dated 10.2.20217
passed by this Court in this revision stands
vacated.

17. Let a copy of this order be
transmitted
to
the
Court
below
for
necessary compliance.
----------
(2023) 3 ILRA 860
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 650 of 2014

Waqf Qabristan Shehkhan Biradri No. 616,
Meerut ...Revisionist
Versus
U.P. Sunni Central Board of Waqfs & Ors.
 ...Respondents

Counsel for the Revisionist:
Sri Ayub Khan

Counsel for the Respondents:
---

Civil Law - Civil Procedure Code - Section
- 151 - Order - 23, Rule 1 - Nagar
Mahapalika Act, 1916 - Section - 213 -
Waqf Act, 1995 - Sections - 54 & 55: - Civil
Revision - against impugned order - by which
application 3C2 U/s 151 of CPC moved by the
applicant was allowed - maintainability - nature
of property - suit was withdrawn - after about
11 years court below entertain the application
under section 151 of CPC and restored the
reference to its original number - certainly it is
abuse and misuse of the power and illegal
exercise of the inherent power of the Court -
More so, such withdrawal order is revisable but
no such procedure had been adopted by
opposite party no. 2 and by adopting a short cut
method and by adopting illegal measure, the
impugned order has been obtained which is
factually and legally incorrect - accordingly, the
revision is allowed. (Para - 13, 14, 15)

Revision Allowed. (E-11)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This civil revision has been
instituted against the judgment and order
dated
29.9.2014
passed
by
Waqf
Tribunal/Civil Judge (S.D.), Meerut, in
Misc. Case No. 17 of 2004 (Mohammad
Faruk Vs. Sunni Central Board and Others),
by which application 3C2 under Section
151 C.P.C. Moved by the applicantMohammad Farooq, was allowed at the
cost of Rs. 5,00/- and the order passed on
the withdrawal application on 10.12.2003
in reference/original suit no. 1294 of 1993
was recalled.

2. In brief, facts of the case are that
Md. Farooq-plaintiff filed a case in the
Court of Waqf Tribunal/Civil Judge (S.D.)
Meerut, as reference no. 1294 of 1993
against Sunni Central Waqf Lucknow,
Managing Committee and Waqf Qabristan
Biradari Shah Khan, with the averments
that he is owner of the house no. 169 (170)
situtated in Mohalla Gulzar Ibrahim, Lisari
Road, Halka No. 13, Meerut City, and is
living with his family. The house was
constructed about 60 years back and father
of the plaintiff was the resident of the house
in suit as owner with his family and after
his death, the plaintiff inherited his right as
son and is residing in the house as owner,