Hon'ble Yatindra Singh, J. - (1.) THIS defendant's first appeal revolves around the nature of the rights conferred upon the plaintiffs predecessor-in-interest by the letter written by the Collector in 1858 (the 1858 Deed). THE FACTS
(2.) THAKUR Sri Radha Ramanji Maharaj (the Plaintiff) is a deity. It has filed original suit No. 185 of 1992 for permanent injunction restraining the State of UP through Collector Mathura (the Defendant) from interfering with its possession. The main allegations in the plaint are as follows : (i) Shah Kundan Lal and Shah Fundan Lal (the original beneficiaries) were given freehold rights over the land situate in the civil lines, Mathura by the British Government (the 1858 Deed). They had constructed a house over the land and are owners of the same. (ii) The original beneficiaries created a trust dedicating considerable property by the deed dated 7.9.1866 (the 1866 Deed) and later on Shah Fundan Lal alongwith the son of Shah Kundan Lal executed a supplementary deed on 19.7.1881 (the 1881 Deed) dedicating the property given to them in free hold by the British government (by the 1858 Deed) alongwith other properties to the Plaintiff. (iii) The total area of the land given to them by the (1858 Deed) was 6.67 acres. Out of this area, (the northern portion) 3.69 acres was leased out to one Sri Laxman Das Bhargava (Laxman Das), who was a high Official in the government. He illegally got the entire land recorded as the nazul property. (iv) The remaining (southern) area of 2.98 acres of land continued with the Plaintiff. (It is subject matter of dispute in this case). ? Over the property in dispute, a kothi was standing. This kothi alongwith the land (2.98 acres) was leased out to the Planning Department of the Defendant. ? Later on, original suit (OS) No. 30 of 1969 for recovery of rent and ejectment was filed against the tenant. The suit was decreed for rent, but was dismissed for ejectment on 10.8.1971. ? The civil appeal (CA) 195 of 1971, against the aforesaid judgment, was allowed on 31.1.1975 and the suit was decreed for ejectment also. ? The plaintiff obtained possession of the land in dispute in pursuance of the decree and is in a lawful possession over the same; (i) The old building standing on the plot has fallen down however, the malwa is still there. The Defendant is illegally trying to make construction over the same. In the plaint, it was not mentioned that: The land given to Laxman Das was the northern portion of the land of the 1858 Deed, or The property in dispute in the suit was the remaining southern portion. However, it is clear from the boundaries of these properties described in the plaint in paragraph 1, 4, and at the end of the plaint.
(3.) IT is on the basis of the aforesaid allegations that the relief of the permanent injunction was asked for. The Defendant filed the written statement. Its case is as follows: ? The British Government had not given any land to the original beneficiaries as the free hold. They are not owners of the property in dispute. Neither any trust deed was executed in respect of the property in dispute nor they were entitled to execute it; ? Shah Gaur Saran had let out some property to Laxman Das. However, Laxman Das got the lease deed executed from the Defendant, when he came to know the correct facts that the property was nazul property and was wrongly let out by Shah Gaur Saran, ? The 1858 Deed said to be executed by the Collector Mathura does not give any details of the property and is not in respect of the property in dispute; ? Even if the 1858 Deed is taken to be in respect of property in dispute then, it is neither a lease, nor grants freehold rights. At the most, it could be a permission to construct a building and is akin to a licence; ? The building has fallen down and the rights of the Plaintiff have come to an end. There was no necessity of taking formal possession over the property in dispute. The permission has automatically lapsed and the property is released; ? The property in dispute is plot No. 61/1 (area 2.98 acres). It has been allotted to the Youth Welfare Department (the YWD) in the year 1991 and is in their possession; ? The YWD is making constructions over the land in dispute. The suit is liable to be dismissed for not impleading the YWD.;