# U.P. Avas Evam Vikas Parishad, Lucknow & Ors v. Virendra Kumar & Ors

- **Citation:** (2024) 9 ILRA 608
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-09
- **Case number:** Second Appeal No. 379 of 2010
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-avas-evam-vikas-parishad-lucknow-ors-v-virendra-kumar-ors-52404
- **Pages:** 18

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section - 100 - Order VII - Rule 11 - U.P.
Avas Evam Vikas Parishad Adhiniyam,
1965 - Sections 17, 32, 73, 82, 83, 84, 88
& 88(2) - - U.P. Town Improvement Act,
1919 - Section 36 - Specific Relief
Act,1963 - Sections 38 & 41 - Land
Acquisition Act, 1894- Section 17 - Second
Appeal - filed by defendants - original suit - for
a permanent prohibitory injunction - filed by
plaintiffs, against the defendant-appellants, who
claim ownership and tenancy of a disputed
property - The trial court dismissed the suit -
but, the appeal filed by plaintiffs was allowed,
leading to a decree in their favour - The
defendants then appealed in instant Second
Appeal - raised substantial questions of law
regarding the ownership and identity of the
disputed land - court finds that, in the entire
gamut of the otherwise very detailed findings
recorded by the lower appellant court to answer
for the plaintiffs, the ignorance of this principle
in dispute about location of the suit property
being in one plot number or numbers or the
other, would vitiate the conclusions - held, the
findings of the lower appellate court cannot be
U.P.held unless a survey of the contiguous
Khasra numbers is duly carried out according to
the fixed point method - hence, the impugned
decree passed by lower appellate court is set
aside - matter is remanded back to the court for
further investigation to accurately determine the
location of the suit property using a survey
commission or the total station method - lower
appellate court will then rehear and decide the
appeal afresh - directions issued, accordingly -
Appeal is allowed in part.(Para - 43, 45, 46, 47)

Second Appeal Partly allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,842 of 62,757. This is a partial read: ask again with offset=39842 for what follows._

608 INDIAN LAW REPORTS ALLAHABAD SERIES
immediately allow the petitioner to have
access to the said bank account. Needless
to mention, the Department shall be at
liberty to proceed in accordance with law.

11. The writ petition is allowed.
----------
(2024) 9 ILRA 608
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2024

BEFORE

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

Second Appeal No. 379 of 2010

U.P. Avas Evam Vikas Parishad, Lucknow
& Ors. ...Appellants
Versus
Virendra Kumar & Ors. ...Respondents

Counsel for the Appellant:
Madan Mohan, Chandra Shekhar Singh,
M.D.
Singh
Shekhar,
Madan
Mohan
Chaurasisa,
Rajan
Upadhyay,
Senior
Advocate

Counsel for the Respondent:
A.K. Mishra, Ajay Kumar Singh, Ashish
Kumar Singh, Gautam, O.V. Bajpai, Pushkar
Mehrotra, Swetashwa Agarwal, Varchaswa
Bajpai, Senior Advocate

Civil Law - Civil Procedure Code, 1908 -
Section - 100 - Order VII - Rule 11 - U.P.
Avas Evam Vikas Parishad Adhiniyam,
1965 - Sections 17, 32, 73, 82, 83, 84, 88
& 88(2) - - U.P. Town Improvement Act,
1919 - Section 36 - Specific Relief
Act,1963 - Sections 38 & 41 - Land
Acquisition Act, 1894- Section 17 - Second
Appeal - filed by defendants - original suit - for
a permanent prohibitory injunction - filed by
plaintiffs, against the defendant-appellants, who
claim ownership and tenancy of a disputed
property - The trial court dismissed the suit -
but, the appeal filed by plaintiffs was allowed,
leading to a decree in their favour - The
defendants then appealed in instant Second
Appeal - raised substantial questions of law
regarding the ownership and identity of the
disputed land - court finds that, in the entire
gamut of the otherwise very detailed findings
recorded by the lower appellant court to answer
for the plaintiffs, the ignorance of this principle
in dispute about location of the suit property
being in one plot number or numbers or the
other, would vitiate the conclusions - held, the
findings of the lower appellate court cannot be
U.P.held unless a survey of the contiguous
Khasra numbers is duly carried out according to
the fixed point method - hence, the impugned
decree passed by lower appellate court is set
aside - matter is remanded back to the court for
further investigation to accurately determine the
location of the suit property using a survey
commission or the total station method - lower
appellate court will then rehear and decide the
appeal afresh - directions issued, accordingly -
Appeal is allowed in part.(Para - 43, 45, 46, 47)

Second Appeal Partly allowed. (E-11)

List of Cases cited:

1. Shreepat Vs Rajendra Prasad & ors., 2000 (40)
ALR 534: JT 2000 (7) SC 379,

2. Delhi Development Authority Vs Mohd. Sher Nabi
Chaman & ors., 2015 SCC OnLine Del 7832.

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

1. This is a defendants' second appeal
arising out of a suit for permanent
prohibitory injunction.

2. Original Suit No.1187 of 1991 was
instituted by the four plaintiffs, Virendra
Kumar,
Sheo
Singh,
Rampal
Singh
Chauhan and Km. Pushpa with a case that
plaintiff-respondents Nos.1 to 3 are tenants
in the premises detailed at the foot of the
plaint since the year 1970 on a monthly
rent of Rs.300/-. Defendant-respondent
No.5, Sirajuddin son of Fariduddin, arrayed
as defendant No.3 to the suit, was the
owner of the said premises and the land
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Ors. Vs. Virendra Kumar & Ors.
609
comprising it. He agreed to transfer the
premises
aforesaid
in
the
plaintiffrespondents' favour, and for the purpose,
executed a registered agreement to sell
dated 05.04.1990. The agreement to sell
last
mentioned
(for
short,
'the
suit
agreement') covenants to transfer an area of
5000 square yards, situate in Khasra
No.5751M of Khewat Nos.1 and 15, Qasba
Meerut (for short, 'the suit property'). The
further case of the plaintiff-respondents is
that they are residing in the premises under
reference as tenants and now by virtue of
the suit agreement have contracted a right
to purchase the suit property for a total sale
consideration of Rs.5,00,000/-. Out of the
settled sale consideration, the plaintiffrespondents have paid an earnest in the sum
of Rs.4,70,000/- to defendant-respondent
No.5. The plaintiff-respondents say that
they were paying rent to defendantrespondent No.5 regularly up to the date of
execution of the said agreement, but not
later on, as was covenanted between the
plaintiff-respondents
and
defendantrespondent No.5 at the time of execution
and registration of the last mentioned
agreement that no further rent shall be
payable by the plaintiff-respondents to
defendant-respondent No.5 for reason that
a substantial part of the sale consideration
had been paid at the time of registration of
the suit agreement.

3. It is also the plaintiff-respondents'
case that in part performance of the suit
agreement, possession of the suit property
has been given to the plaintiff-respondents
(described in the plaint as 'remained with
the plaintiffs'). The plaintiff-respondents
are residing in the suit property and
tethering their cattle there. The defendantappellants have no concern with the suit
property. It has never been acquired by the
defendant-appellants and no proceedings
for acquisition of the suit property have
been taken. The defendant-appellants never
sent any notice to the plaintiff-respondents
or defendant-respondent No.5 with regard
to the suit property, or so to speak,
regarding
its
acquisition
or
taking
possession. The constructions standing in
the suit property are old and neither the
plaintiff-respondents
nor
defendantrespondent No.5 have raised any new
construction. The plaintiff-respondents do
not own any other house, except the one
located in the suit property in the city of
Meerut.

4. In the first week of September,
1991, the employees of the defendantappellants attempted to take possession of
the suit property and also attempted
demolition of the constructions standing
thereon.
The
plaintiff-respondents,
therefore, sent a notice under Section 88 of
the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965 (for short, 'the
Act of 1965') to the defendant-appellants
on 10.09.1991, which was received by the
said
defendant-appellants,
but
not
answered. The employees of the defendantappellants, a day before institution of the
suit, attempted to demolish the plaintiffrespondents' construction and take forcible
possession of the suit property. They are
also said to have demanded money of the
plaintiff-respondents. It was on this cause
of action that the plaintiff-respondents
prayed
that
a
decree
of
permanent
injunction be granted against the defendantappellants,
restraining
them
from
interfering in the rights and possession of
the plaintiff-respondents or user by the
plaintiffs of the suit property (described as
working of the plaintiffs on the premises)
and from demolishing any construction of
theirs on the said property, a full
description of which is given at the foot of
610 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaint. It must be mentioned here that in
the plaint, the suit property was originally
described as follows:

"Open land with four rooms
situated at Victoria Park, Dhobighat, Jail
Chungi, Meerut bounded as follows:

East : Plot of Rajvir Singh &
others.

West : Victoria Park, Sports
Colony,

North : Nala, government road
and Dhobighat colony.

South : Rana Pratap Enclave."

5.
The
suit
was
instituted
on
20.11.1991 with the aforesaid description
of the suit property, but much later on
27.03.2009, an amendment application was
made, seeking to amend the boundaries.
The amendment application was allowed
by the Court vide order dated 28.04.2009.
The amended description of the suit
property is detailed below:

"Open land with four rooms
situated at Victoria Park, Dhobighat, Jail
Chungi, Meerut bounded as follows:

South : earlier Plot of Rajvir
Singh & others. Now colony of Avas Vikas
Parishad.

North : Dhobi Ghat Colony and
Victoria Park Sports Colony and thereafter
road.

East
:
Government
road
thereafter Nala.

West : Now construction of Avas
Vikas Parishad thereafter Rana Pratap
Enclave. Thereafter Abu Nala.

And shown in map Annexure 1 of
the Plaint by the letters ABCD ."

6. Along with the amended plaint, a
plaint map is annexed, where the suit
property is denoted by the letters ABCD,
an area of 5000 square yards.

7. A written statement was filed on
behalf of the two defendants to the suit,
who are the defendant-appellants here.
They are, for all practical purposes and
intents, the U.P. Avas Evam Vikas
Parishad, queerly impleaded twice, first
through the Housing Commissioner and
then as defendant No.2 through the
Assistant Housing Commissioner, Meerut.
In the written statement, they have denied
the ownership of defendant-respondent
No.5 and say that, not being the owner, he
had no right to execute the suit agreement,
on the foot of which, no rights can accrue
in the plaintiff-respondents' favour. The
suit
property
was
acquired
by
the
Government
and
delivered
unto
the
defendant-appellants, who are in possession
of the same. It is the defendant-appellants'
case that the suit property is a small piece
of land, which was acquired by the
Government for the Improvement Trust,
Meerut. A scheme for Housing in Meerut,
known as 'Housing Accommodation and
Street Scheme No.1', was launched in an
area lying between the Abu Nala Meerut,
Garh Road and Kanker Road, now known
as the University Road. The boundaries of
the acquired land have been pleaded by the
defendants in paragraph No.16 of the
written statement, thus:

"North : Khasra Plot No.5717,
5719, 5732, 5733 and 5751 part of Qasba
Meerut.

South : Meerut-Garh Mukteshwar
Road.

West : Abu Nala.

East : Kankar Road which joins
Abdullahpur
Chungi
to
Meerut
Garhmukteshwar Road."
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Ors. Vs. Virendra Kumar & Ors.
611

The defendant-appellants say that
later on, the name of the Avas Evam Vikas
Parishad, the defendant-appellants was
entered in the Malikan Register on Page
No.79. This entry was made in the Tehsil
records on 16th of August, 1977.

8. A notification for acquisition of the
land under reference was issued under Section
36 of the Town Improvement Act, 1919 and
published in the Gazette of U.P. dated 22nd,
29th October, 1966 and 5th November, 1966
for information to the general public, inviting
objections. It is the defendant-appellants' case
that after due process of disposal of objections,
the land proposed to be acquired through the
earlier
notifications
under
the
Town
Improvement Act was notified on 29.11.1969
under Section 32 of the Act of 1965. It is also
pleaded by the defendant-appellants that upon
enforcement of the Act of 1965, the
Improvement Trust, constituted for the area,
stood dissolved and all its assets, rights and
liabilities transferred to the Avas Evam Vikas
Parishad, the defendant-appellants (for short,
'the defendants'). After publication of the
notification in the Gazette on 29.11.1969, the
entire land detailed in the written statement
stood vested in the defendants and possession
of the land acquired was delivered on
13.01.1972
to
the
defendants
by
the
Government. The defendants say that the
plaintiff-respondents
and
defendantrespondent No.5 are not at all entitled to raise
any constructions on any part of the suit
property, located in part of Khasra No.5751,
without the sanction of a plan for the purpose
by the Avas Evam Vikas Parishad. To do
otherwise, would be a contravention of
Section 83 of the Act of 1965. It seems to be
the alternate case of the defendants that if any
constructions have been raised by the plaintiffrespondents, though not admitted, in the suit
property, comprising a part of Khasra
No.5751, in contravention of provisions of the
Act of 1965, the plaintiff-respondents are
liable to be penalized under Section 73 of the
last mentioned Act. The defendants are vested
by statute with the right to demolish the said
constructions, if any, standing on the suit
property under Sections 82 and 83 of the Act
of 1965. They have a right to enter in the said
land under Section 84 of the last mentioned
statute.

9. On the 8/9th of August, 1992, the
defendants lodged a First Information
Report with the jurisdictional police station
against unknown anti-social elements, who
were attempting to encroach the suit
property, which belonged to the Avas
Evam Vikas Parishad. Acting on the FIR,
the Police demolished the unauthorized and
illegal constructions found on the spot. The
defendants
say
that
the
plaintiffrespondents (for short, 'the plaintiffs') are
not residing in the suit property, but live in
separate residences of their own in the city,
a fact mentioned in the cause title of the
plaint. Defendant-respondent No.5 was
never the owner of the suit property and,
therefore, the suit agreement, described by
the defendants as 'so called', is a nullity in
the eye of law and void. In the absence of
any right, title or interest and lawful
possession, the plaintiffs have no cause of
action to maintain the suit. The description
of the suit property given in the plaint is
castigated as vague and incorrect. The
boundaries of Khasra No.5751, part of
which was delivered into the possession of
the defendants by the Government (by
virtue of the acquisition), have been given
in
paragraph
No.27
of
the
written
statement, thus:

"North: Pakki Nali and thereafter
Dhobi Ghat and Abadi of others.

South: Part of Khasra No.5749
and part of Khasra No.5750.
612 INDIAN LAW REPORTS ALLAHABAD SERIES

East: Nala and Khasra No.5733.

West: Abu Nala."

10. It is also the defendants' case that
though possession of the plaintiff is not
admitted, but if they be found in
possession,
they
are
no
more
than
trespassers in the suit property. Their suit,
therefore, is not maintainable. The suit is
barred by estoppel and acquiescence,
besides the want of notice under Section 88
of the Act of 1965.

11. On the pleadings of parties, the
Trial Court framed the following issues
(translated into English from Hindi):

"1. Whether defendant No.3 was
owner of the suit property? If yes, its
effect?

2. Whether plaintiff Nos.1 to 3
were tenants in the suit property from the
year 1970 at the rate of Rs.300/- per
month? If yes, its effect?

3. Whether defendant No.3 has
executed a registered agreement dated
05.04.1990 to transfer the suit property in
the plaintiffs' favour for a total sale
consideration of Rs.5,00,000/-, out of
which the plaintiffs have paid defendant
No.3 a sum of Rs.4,70,000/- in advance?

4. Whether possession of the suit
property has been delivered to the plaintiffs
in part performance? If yes, its effect?

5. Whether the suit property has
been acquired by the Government and its
possession delivered to defendant Nos.1
and 2 as averred in paragraph Nos.7 and 16
to 20 of the written statement?

6. Whether the plaintiffs are
liable to be punished under Section 73 of
the U.P. Avas Evam Vikas Parishad
Adhiniyam, 1965, as averred in paragraph
No.21 of the written statement?

7. Whether the suit agreement is
void and has any evidentiary value? If yes,
its effect?

8. Whether in view of the
averments in paragraph No.26 of the
written statement, the plaint is liable to be
rejected?

9. Whether the suit is barred by
the principle of estoppel and acquiescence?

10. Whether the plaintiffs' suit is
barred by Section 88 of the U.P. Avas
Evam Vikas Parishad Adhiniyam for want
of notice?

11. To what relief is the plaintiffs
entitled?"

12. The plaintiffs in support of their
case
filed
documentary
evidence,
a
summary of which is recorded in the
judgment of the Trial Court. Apart from the
documentary
evidence,
the
plaintiffs
examined PW-1 Virendra Kumar, PW-2
Rampal Singh, PW-3 Raj Kumar Sharma
and PW-4 Jaipal Sharma. The defendants
too filed documentary evidence, a summary
whereof figures in the judgment of the Trial
Court. Two witnesses were examined on
behalf of the defendants, to wit, DW-1
Umesh Mohan Sharma and DW-2 Jeet
Singh.

13. The Trial Court determined Issues
Nos.1, 2, 3, 4 and 7 together. The Trial
Court after considering the case and
evidence of parties on the aforesaid issues
remarked that the evidence shows that so
far as the plaintiffs are concerned, they had
in their favour the suit agreement, but no
sale deed had been executed. It is remarked
by the Trial Court that in Khasra No.5751,
names of a number of other persons are
also recorded. The plaintiffs never applied
for a survey to be done in order to
determine in which Khasra number the suit
property was located. It is opined that on
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Ors. Vs. Virendra Kumar & Ors.
613
the basis of the suit agreement alone, the
plaintiffs would not become owners. The
Trial Court has also frowned much upon
the fact that in the suit agreement, the suit
property has not been properly described
with reference to its location. It is described
as 5000 square yards of land with its
boundaries given. The agreement is of the
year 1990, but no sale deed was attempted
to be secured by the plaintiffs. This, in the
opinion of the Trial Court, shows that the
suit agreement is sham. It is more than once
emphasized by the learned Trial Judge in
his findings on these issues that in the
absence of a survey being done, it is
difficult to determine in which plot number,
the suit property is located. More or less on
this reasoning, the Trial Court decided
Issues Nos.1, 2, 3, 4 and 7 against the
plaintiffs and in the defendants' favour.

14. Issue No.5 was decided against the
plaintiffs and in the defendants' favour,
holding that the suit property had been
acquired by the Government for the
defendants,
who
have
been
given
possession thereof. The defendants are
owners in possession of the suit property.
Issues Nos.8 and 11 were determined
together. Here again, the Trial Court has
emphasized the fact that the plaintiffs did
not take steps to get the suit property
surveyed nor did they secure execution of a
sale deed in their favour from defendantrespondent No.5, Sirajuddin. The Trial
Court on these findings dismissed the suit
with costs vide judgment and decree dated
16.08.2005.

15. Aggrieved, the plaintiffs appealed
the decree to the District Judge of Meerut,
where their appeal was numbered as Civil
Appeal No.181 of 2005. It was assigned to
the learned Additional District Judge, Court
No.7, Meerut, before whom it came up for
hearing. The learned Additional District
Judge by his judgment and decree dated
07.01.2010 allowed the plaintiffs' appeal with
costs, set aside the judgment and decree
passed by the Trial Court, reversed the same
and decreed the suit with costs. The
defendants were restrained from interfering
with the plaintiffs' possession in the suit
property, denoted by letters ABCD.

16. Disillusioned by the decree passed
by the learned Additional District Judge, the
defendants have appealed to this Court under
Section 100 of the Code of Civil Procedure,
1908 (for short, 'the Code').

17. The appeal was admitted to hearing
on
07.04.2010,
when
the
following
substantial questions of law were formulated:

1.
Whether
the
plaintiffrespondents can claim or maintain any rights
or title over the land in question only on the
basis of agreement of sale executed by
Sirajuddin?

2.
Whether
the
plaintiffrespondents who claim tenancy rights also
over the land in question could contest the
claim of U.P. Awas Vikas Parishad, Lucknow
to acquisition of land in question on grounds
other than those to which a tenant is entitled
in law?

18. On 07.08.2019, another substantial
question of law was framed, which reads:

Whether the lower appellate
court was justified in allowing the appeal
and decreeing the suit of the plaintiffrespondent
without
the
boundaries
mentioned in the amended plaint being duly
proved?

19. After the hearing had proceeded
substantially on 28.02.2024, 29.02.2024,
614 INDIAN LAW REPORTS ALLAHABAD SERIES
01.03.2024,
04.03.2024,
05.03.2024,
07.03.2024 and 11.03.2024, on 12th of
March, 2024, this Court thought it
imperative to frame a further substantial
question of law, to which the parties
agreed. Accordingly, following substantial
question of law, marked as '(iv)' was
formulated. It reads:

Whether the issue being if part of
Khasra No. 5751 i.e. the suit property is
located in Khewat Nos. 1 and 15 or Khewat
No. 445, it was imperative for the Court to
issue a Survey Commission or adopt the
Total Station Method in order to locate the
suit property?

20.
This
appeal
was
heard
on
28.02.2024, and, thereafter, across a
number of dates until 14.03.2024, when
judgment was reserved.

21. The learned Counsel for the parties
addressed
the
Court
on
Substantial
Question of Law No.1, the third that was
formulated on 07.08.2019, without being
numbered, which shall be referred to as
Substantial Question of Law No.3, and for
the most part on the question that was
formulated last, that is to say, Question No.
(iv). Upon considering the submissions of
parties on Substantial Question of Law No.
(iv), the way these were addressed, this
Court thought that the question was
formulated on slightly different terms than
those involved, which required clarification
and perhaps re-formulation, on which the
parties had to be heard again. Accordingly,
the appeal was posted for further hearing
on 06.09.2024. On the said day, learned
Counsel for the parties were apprised about
the terms of Substantial Question of Law
No. (iv) formulated on 12.03.2024, seeking
clarification
about
their
submissions
advanced earlier. The learned Counsel
appearing for both parties agreed that given
their
submissions
on
the
substantial
question under reference, it was required to
be re-formulated. Accordingly, Substantial
Question of Law No.(iv), framed on
12.03.2024,
was
reformulated
on
06.09.2024 in the following terms:

(iv) Whether the issue being if the
suit property is located in Khasra Nos.
5751/1, 5751/2, 5751/3, 5751/4, 5751/6,
5751/7, 5751/8, 5751/9, 5751/10, 5751/11
and 5751/12 or a part of these plots
(unacquired)
or
Khasra
No.5751/5
(acquired), all part of Khewat Nos. 1 and
15, it was imperative for the Court to issue
a Survey Commission or adopt the Total
Station Method?

22. Before proceeding further and
answering the questions involved in this
appeal, it must be recorded here that in the
Lower
Appellate
Court,
extensive
documentary evidence was admitted to
record, a copious description of which in a
summary finds record in the judgment of
that Court. There are three registered
agreements,
apparently
executed
by
defendant-respondent No.5, either directly
or through his attorney, in favour of the
plaintiffs dated 07.10.2005, 29.09.2008 and
16.09.2009, extending the life of the
original registered agreement to sell dated
05.04.1990. Apart from it, there are many
documents relating to acquisition by the
defendants brought on record, some of
which have been secured under the Right to
Information Act. PW-1, Virendra Kumar,
who is the first plaintiff in the suit, has
testified before the Lower Appellate Court
in the witness-box.

23. Heard Mr. Ramesh Upadhyaya,
learned Senior Advocate assisted by Mr.
Rajan Upadhyay, learned Counsel for the
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Ors. Vs. Virendra Kumar & Ors.
615
defendants in support of this appeal, Mr.
Ashish Kumar Singh, learned Counsel
appearing
on
behalf
of
defendantrespondent
No.5
and
Mr.
Pushkar
Mehrotra, learned Counsel appearing for
plaintiffs Nos.1, 2, 3 and 4.

24. As regards the first substantial
question of law, the Lower Appellate Court
has extensively referred to the recorded
chain of title relating to Khasra No.5751,
regarding the part falling in Khewat No.1.
It has been noticed that Khewat No.15
relating to Khasra No.5751, paper No.144Ga shows the name of Sirajuddin son of
Fariduddin,
defendant-respondent
No.5
recorded along with the other co-owners.
The Lower Appellate Court has opined that
a perusal of paper No.145-Ga/3 supports
the fact that Shafiuddin son of Rafiuddin
was recorded in Khasra No.5751M to the
extent of 0.9360 hectare. Likewise, paper
No.145-Ga/4 shows that in Khewat No.15,
Shafiuddin son of Rafiuddin's name is
recorded in Khasra No.5751M to the extent
of 1.3160 hectares. Others too are recorded
in the plot with their possession shown by
way of abadi. It is then remarked that
Khasra No.5751 also finds record in paper
No.147-Ga for the Fasli Year 1410. It is
also remarked by the Lower Appellate
Court that paper No.142-Ga is a sale deed
executed
by
Khan
Bahadur
Sheikh
Wahiuddin in favour Bhuria, which is now
Allah Mehar's land. This fact shows that in
the opinion of the Judge in the Lower
Appellate Court, Wahiuddin sold land to
Allah Mehar, leaving back the remainder of
his land lying towards south of that sold in
Khasra No.5751M. The inference drawn by
the learned Judge in the Lower Appellate
Court is that the suit property, denoted by
letters ABCD (in the plaint map) lies to the
south of the Dhobi Ghat and belongs to the
heirs of Khan Bahadur Wahiuddin, where
in the Khewat, Shafiuddin son of Rafiuddin
is recorded along with others. It is also
remarked that in the same Khewat,
defendant-respondent No.5, Sirajuddin is
also recorded as a owner. A copy of the
plaint, bearing paper No.117-Ga, giving
rise O.S. No.21 of 1993, Jamaluddin v.
Mughisuddin and another, from the Court
of the 5th Additional Civil Judge, Meerut
has been noticed by the Lower Appellate
Court to show that Shafiuddin son of
Rafiuddin was defendant No.20 to the said
suit, who had died and in his place, his
heirs had been substituted as defendant
Nos.20/1, Kutubuddin, 20/2, Sirajuddin and
20/3, Abdul Qadir, all sons of Sheikh
Fariduddin. This has led the Lower
Appellate Court to further infer that
Shafiuddin, who was recorded in Khasra
No.5751, Khewat No.15 to the extent of
1.3160 hectares and Khewat No.1 to the
extent of 0.9360 hectare, had died, leaving
behind
defendant-respondent
No.5,
Sirajuddin, inheriting a one-third share that
he owned in the Khewat. It is also noticed
that Sirajuddin was already recorded in
Khewat Nos.1 and 15 as one of the owners
(Malikan). From these facts, the Lower
Appellate
Court
has
inferred
that
defendant-respondent No.5, Sirajuddin was
owner in possession of land, comprising his
share in Khasra No.5751 of Khewat Nos.1
and 15. It is then remarked by the learned
Judge that defendant-respondent No.5 has
not traversed the plaintiffs' claim and the
suit against him had proceeded ex parte. He
had executed the suit agreement, the
execution of which was proved by Virendra
Kumar, PW-1 and Jaipal Sharma, PW-2,
who were witnesses of the agreement. A
further agreement to sell and extending the
term of the suit agreement, paper No.173Ga (photostat copy of which is paper
No.174-Ga)
has
been
executed
on
16.09.2009. The suit agreement has,
616 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, been found to be still an
enforceable contract. The suit agreement
was opined by the Lower Appellate Court
to be one showing the boundaries of the
suit property, comprising 5000 square
yards of land, contracted to be purchased
for the worth of Rs.5,00,000/-, out of which
a sum of Rs.4,70,000/- was paid in earnest.

25. In the opinion of the learned Judge
in the Lower Appellate Court, the suit
agreement shows that the plaintiffs were in
possession of the suit property, earlier as
tenants. It is remarked that the issue,
whether the plaintiffs had paid the requisite
sale consideration to defendant-respondent
No.5 is a matter inter se the two parties,
where the defendants have no locus standi
to object. From the testimony of PW-1
Virendra Kumar, PW-2 Rampal Singh,
PW-3 Raj Kumar Sharma and PW-4 Jaipal
Sharma, in the witness-box, it has been
concluded by the Lower Appellate Court
for a fact that it is the plaintiffs, who are in
possession of the suit property. The suit
agreement affirms the fact that at the time
of entering into it, the plaintiffs were in
occupation of the suit property on a
monthly rent of Rs.300/- since the year
1970. It has also been remarked that rent
receipts have been produced and proved.

26. The question, therefore, if the
plaintiffs can claim or maintain any rights
or title over the suit property on the basis of
an agreement to sell alone, executed by
Sirajuddin, is to be answered in the
affirmative. The reason is that inter se
Sirajuddin,
defendant-respondent
No.5,
who has been found by the Lower
Appellate Court on a plausible view of the
evidence on record to be the owner of the
suit property and the plaintiffs, there is no
dispute that the plaintiffs are in possession
of the suit property. Their possession
commenced as tenants way back in the year
1970 and the character and nature of their
rights altered to that of a vendee, holding
under a contract, whose existing possession
had been converted to one referable to the
agreement to sell or the suit agreement
here. It really means that the former
tenants, to wit, the plaintiffs, are now in
possession of the suit property in part
performance
of
the
suit
agreement.
Assuming that the plaintiffs are not in
possession of the suit property in part
performance of the suit agreement, but as
tenants, properly so called, or holding over,
or at sufferance, there is no quarrel about
the fact that howsoever inchoate the
plaintiffs' title, it is a case for the plaintiffs,
holding permissive possession of the suit
property at the instance of the owner
thereof, to wit, defendant-respondent No.5,
Sirajuddin.

27. Now, the other issues to what
extent Sirajuddin is the owner of the suit
property, vis-à-vis his co-sharers and what
is the extent of his rights in the suit
property, area-wise, is a matter inter se
Sirajuddin and his co-sharers, and may be
the plaintiffs. The fact if the plaintiffs are
still tenants of some kind or in possession
of the suit property in part performance, as
already remarked, is also a matter between
the plaintiffs on one hand, and defendantrespondent No.5, Sirajuddin on the other. It
has nothing to do with the defendants
unless the defendants show or establish that
they have acquired title to the suit property,
or so to speak, the said property through the
Government under the law of acquisition.
Whether they have acquired the suit
property or not, is not the subject matter of
this question. Elsewhere, it has been held
and that alone is relevant to this question
that the defendants are not the owners of
the suit property. If they are not, the
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Ors. Vs. Virendra Kumar & Ors.
617
plaintiffs, whether in possession of the suit
property by permission or licence of
defendant-respondent No.5, or in their right
as his tenants, or by virtue of possession
traceable to part performance of the suit
agreement,
executed
by
defendantrespondent No.5, are entitled to maintain
the suit for an injunction against the
defendants; if not on the basis of pristine
title, on the basis of a well established and
sound possessory title.

28. In view of the answer to
Substantial
Question
of
Law
No.1,
Substantial Question of Law No.2 does not
arise for consideration, as rightly objected
to by the plaintiffs.

29. Now, this takes us to the third
question, if the Lower Appellate Court was
justified in decreeing the suit without the
boundaries mentioned in the amended
plaint being duly proved. The Lower
Appellate Court has answered the issue if
the boundaries originally given in the plaint
and those amended and clarified with the
aid of a plaint map effect a change in the
identity of the suit property. The learned
Judge has remarked that the boundaries
given in the plaint, originally pleaded,
showed the suit property to be one abutting
the Dhobi Ghat and the Government Road.
The boundaries, that were earlier given in
the plaint and those presently given, on all
four sides are the same. The suit property
on side AB to the north showed Dhobi
Ghat and Sports Colony; to the south, it
earlier showed the plot of Rajveer, which
land has now been given into the
possession of the defendants, the Avas
Evam Vikas Parishad. The suit property on
the side AD shows the defendants and
thereafter the Maharana Enclave. It is then
remarked that upon a perusal of the map
attached to the plaint, it is clear that the
north-south directions relative to the suit
property are diagonally placed and for the
said reason, in giving the boundaries of the
suit property, some confusion had arisen. A
perusal of the plaint map, annexed after the
amendment, clarifies the situation of the
suit property and indicates no change in its
location.

30. It is remarked by the Lower
Appellate Court that the submission of the
learned Counsel for the defendants here
that there is a change brought about to the
suit property has no force. The said
property, as shown in the plaint map
annexed, has no confusion about its
identity. Now, these are findings of fact
recorded by the Lower Appellate Court
upon doing a comparison of the boundaries
originally pleaded in the plaint, with those
amended, together with the plaint map
brought in through the amendment to
clarify matters. It may be noticed that the
suit was instituted way back in the year
1991 and the plaint giving rise to it is a
document
dated
20.11.1991.
The
boundaries were amended pursuant to an
order of the Court dated 28.04.2009, made
on
an
amendment
application
dated
27.03.2009. The change in boundaries, that
the plaintiffs have brought in through the
amendment, is distanced in time by 18
years. This Court must observe that every
amendment to the boundaries in the plaint
need not be proved, provided the change
brought in through the amendment on a
realistic appraisal of evidence, does not
bring about a change to the location and the
identity of the suit property. If the change,
that is brought in through the amendment,
is merely clarificatory of the boundaries
originally pleaded, or is necessitated by the
fast-changing landscape in contemporary
time, where the surroundings of a given
property suffer quick change due to the fast
618 INDIAN LAW REPORTS ALLAHABAD SERIES
pace
of
development,
no
proof
of
boundaries,
the
change
whereof
is
necessitated by the changed surroundings
of the property overtime may be required.
In this connection, reference may be made
to Naresh Kumar and others v. Smt.
Chawli and others, 2020 (5) ADJ 33,
where I held:

"41. The findings of the lower
Appellate Court, based on appreciation of
documentary and oral evidence to conclude
the precise manner in which Khasra No.
113 has been subdivided to leave a residue
on the eastern side of the brick-worked
road, laid with permission of the plaintiff,
is a flawless finding of fact. It is not for this
Court to interfere with that part of the
finding. This Court, however, has, within
the limited scope of its scrutiny clearly
indicated that on a true interpretation of the
title deeds, dated 3.6.1896, 4.6.1896 and
26.3.1920, there is no interpretation to be
done about identity of the suit property,
where conclusions have been drawn by the
lower Appellate Court from evidence based
on subsequent changes to physical features,
that are not contemporaneous to the saledeeds. It is held for a principle that though
boundaries given in the deeds of title are
the most reliable evidence about the
identity of adjoining properties, but the rule
may have slender or no application to a
situation where physical features about the
property suffer change in course of time. In
this case that change happened in 1956."

(emphasis by Court)

31.
The
question
is,
therefore,
answered in the negative with the remark
that given the clarificatory nature of the
boundaries of the suit property brought in
by amendment and depiction of changes
due to development, the Lower Appellate
Court committed no error in decreeing the
suit without the boundaries in the amended
plaint being proved.

32. Now arises for consideration the
last and the most fundamental question,
that is to say, the fourth substantial
question of law. The question is, if it was
imperative for the Court to issue a survey
commission or resort to the total station
method in order to locate the suit property.
The dispute about the location of the suit
property has arisen precisely on the issue if
it is located in Khasra Nos. 5751/1, 5751/2,
5751/3, 5751/4, 5751/6, 5751/7, 5751/8,
5751/9, 5751/10, 5751/11 and 5751/12 or a
part of these plots (unacquired), or Khasra
No.5751/5 (acquired), all part of Khewat
Nos. 1 and 15. The question about the
location of the suit property has been dealt
with by the Lower Appellate Court in
answering Issue No.5; Issues Nos.1, 2, 3, 4
and 7 together, and, lastly, Issue No.11. In
answering the substantial question of law
under consideration, it is not the findings of
fact recorded by the Lower Appellate Court
about the location of the suit property, visà-vis the Khasra plot number, that we are
required to re-determine, but to see if the
conclusion about location of the suit
property in one or the other Khasra plot
number, could be reached without the aid
of a survey commission. There is no
quarrel on facts between parties that a
survey commission following the threefixed point method was not issued at all in
this case. Neither the parties made that
application, either during trial or in appeal;
nor did the Court consider it appropriate to
issue a survey commission. This issue was
raised before the Trial Court and noticed in
its judgment, but no commission was
indeed issued. It is required to be seen if on
the state of evidence the issue of a survey
commission or adoption of the total station
method to locate the suit property in one
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Ors. Vs. Virendra Kumar & Ors.
619
Khasra plot number or the other with
reference to its Khewat or otherwise was
necessary. The Lower Appellate Court has
noticed that the suit property is a 5000
square yards land, denoted in the plaint
map by letters ABCD. According to the
plaintiffs, it is a part of Khasra No.5751,
which is included in Khewat Nos.1 and 15.
It is also noticed that the plaintiffs' case is
that the suit property has not been acquired
by the Government. Rather, what has been
acquired out of the said plot is the land
comprising the Dhobi Ghat, belonging to
Allah Mehar, which comprises an area of
two bigha.

33. The plaintiffs' case further noticed
is that two bigha of land belonging to Allah
Mehar has constructions all over it and for
the said reason, possession of this acquired
land could not be taken. The defendants,
therefore, are attempting to take possession
of land to the south of Allah Mehar's, that
is part of Khasra No.5751M, included in
Khewat Nos.1 and 15, but not acquired in
order to make good the total area of 14
bigha 16 biswa and 6 biswansi of acquired
land in Khasra No.5751.

34. The learned Judge in the Lower
Appellate Court while answering Issue
No.5 has remarked that the conclusions of
the Trial Court on the issue were not based
on evidence led by parties. The evidence
led by parties on this issue has not been
appreciated in its context and conclusions
drawn. The learned Judge has referred to
paper No.48-Ga/1, which is a possession
memo. A photostat copy of the said memo
has been noticed to be marked as paper
No.188-Ga/2. Now, about this document, it
is remarked by the Lower Appellate Court
that pursuant to the notification dated
12.10.1972 under Section 17 of the Land
Acquisition Act, a total area of 66 bigha 6
biswansi was taken possession of by the
defendants. The possession memo indicates
the Khasra numbers of the plot and the
relative area.