- (1.) HEARD Shri Sharad Sharma, counsel for the appellant and Standing coun sel for the State.
(2.) BY the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside judgment dated 15-3-2007 passed by the District Judge, Tehri Garhwal. Second appeal was admitted on the following substantial questions of law : 1. Whether failure of court to con sider the right of rehabilitation at an alternative place as enshrined under Article 21 renders the judg ment bad ? 2. Whether the right of rehabilita tion can be accrued to the ap pellant on account of the fact that the Tehbazari was being ac cepted from the plaintiff appel lant and failure of the court be low to consider this aspect of the matter vitiates the findings re corded by the Appellate Court. " Briefly stand, a suit was filed by the plaintiff in respect of the khokha situ ate on the land of Khata No. 104, Khasra No. 490 at Kempty Fall, village Banglo Ki Kandi, Patti Chhaijyula, Tehri Garhwal. In paragraph no. 1 of the plaint, it has been stated that land is in the ownership of the State of Uttar Pradesh. According to the plaint aver ments, from time to time the plots were given On lease and there are 150 stalls and the plaintiff is doing the business of tea stall on the plot in dispute The grievance of the plaintiff is that in 12/ 13 August, 2000, the Patwari came on the spot and has asked the plaintiff to remove his khokha on 19-08-2000 and therefore, the plaintiff has claimed the permanent injunction restraining the defendant from evicting him from the land where he is running the tea stall.
(3.) A writing statement was filed on behalf of the defendant denying the en tire averments contained in the plaint. In paragraph 5 of the written statement, it has been stated that plot no. 490 has been transferred to the Tourism Depart ment of the Government and the plain tiff has encroached upon the land meas uring 6. 5 x 5 metre causing the incon venience to the tourists. The plaintiff has obstructed the passage there for which concerned Sub Divisional Magistrate has directed the Tehsildar to take legal ac tion and remove the encroachment. Le gal action under Section 133 Cr. P. C. was also initiated against the plaintiff. The plaintiff is not entitled to any relief and the suit is liable to be dismissed. The learned lower court has framed the following three issues : Hindi 7. Both the parties have led the oral as well as documentary evidence. On behalf of the plaintiff, 11 docu ments from list 7 ga and 3 documents from list 22 ga has been submitted and P. W. 1 Sohan Lal, P. W. 2 Shyam Singh and P. W. 3 Satya Prasad have been ex amined on behalf of the plaintiff. On be half of the defendant, D. W. 1 Dinesh Mohan Uniyal has been examined. 8. While deciding issue no. 1, the trial court has recorded a finding that unless the plaintiff is dispossessed in ac cordance of law, he is entitled to remain in possession of the land in dispute. 9. So far as issue no. 2 is concerned, the trial court has recorded a finding to the following effect: 10. On the basis of the observations made above, the trial court passed an order restraining the defendant from in terfering with the possession of disputed khokha situate at the land Khata no. 104, Khasra no. 490 at Kempty Fall, vil lage Bangolo ki kandi, Patti Chhaijyula, District Tehri Garhwal except in accord ance with law. 11. Aggrieved by the judgment and decree passed by the trial Court, the de fendant went in appeal. 12. The appellate court after taking into the consideration the documents available on the record, has reversed the findings of the trial court with regard to issue no. 1 and has recorded a finding to the following effect : "it was also mentioned that accord ing to this principle the khokha was not found as an illegal encroach ment. Learned trial court has drawn the inference against the facts of this case and the finding given by it is self-contradictory. Once he has writ ten that the person in possession has all the rights against other person other than the true owner but he has overlooked this fact that the owner of the disputed land is, admittedly, the State Govt. and even the law of easement does not provide ownership by way of adverse possession against or upon the government land. The respondent/plaintiff in his pleadings never mentioned that he came up on the land as a lessee or by way of some right. By the pleadings of plain tiff himself, it was very much clear that the possession of plaintiff upon the disputed land was a clear illegal encroachment from the very begin ning. The payment of tehbazari to Zila Parishad did not give any right to the plaintiff against the State Govt. because this was not a lease amount received by the government. The illegal possession of any person may be howsoever long but it can not be turned into ownership over the government land. Hence, the learned trial court was wrong to hold that the possession of the plaintiff is not ille gal. " 13. With regard to issue no. 2, the appellate court has reversed the finding recorded by the trial court and has re corded the finding as under : "learned trial court has held that it is an admitted fact that the defend- ant is trying to dispossess the plain tiff from the government land. The evidence, which was before the lower court; was sufficient to show that these efforts were taken in a legal manner. There was no such evidence to show that the employees of the State Government were doing any forceful or totally illegal effort to dis possess the plaintiff. Hence, there was no sufficient cause of action available to the plaintiff to file the original suit against the legal proceedings started by the State. The defendant has specifically mentioned in its written statement that a notice under Section 133 Crpc was issued to the plaintiff to remove the ob struction caused by the khokha in the way. If the proceeding was in viola tion of law, then the plaintiff could have filed an appeal under appropri ate provisions but with the mala fide intention to obstruct the other legal proceedings filed by the State, this original suit was filed. Hence, it was very much clear that he did not come with clean hands before the Court, and there was no sufficient evidence that the defendant was dis possessing him forcefully. " 14. On the basis of the aforesaid observation, the appellate court has set aside the judgment and decree dated 8-5-2006 passed by the trial court. 15. P. W. I Sohan Lal, plaintiff him self, has admitted in his affidavit that no lease or patta was granted to him about the land, which is in his posses sion. He has also admitted that the State has granted lease to some persons but he has shown ignorance about those persons, In paragraph 7 of the affida vit, he has stated to the following effect : Hindi 16. In fact, there is an admission of the plaintiff that no lease deed has been granted in his favour in respect of the disputed land. In the cross-examina tion he has stated as under : Hindi 17. P. W. 2 Shyam Singh and P. W. 3 Satya Prasad has also admitted that the land in dispute is a government land and do not belong to the plaintiff. 18. The affidavit of Dinesh Mohan Uniyal was also filed as D. W. I and in his affidavit it has been stated that the plaintiff is in illegal occupation of the land to the extent of 6. 5 x 5 metre. Paragraph 2 Of the affidavit to that ef fect is quoted below : Hindi 19. !counsel for the appellant has submitted that the appeal was filed be yond time and the delay was condoned and thereafter the appeal was decided on merits and, as such, there has been a violation of Order 41 Rule 1 2 of the Code of Civil Procedure. 20. The appeal was filed on 8-5-2006 along with the application under Section 5 of the Limitation Act. 21. The appellate court on 3-2-2007 has passed the order to the following ef fect :- Hindi 22. Ordersheet of 6. 3. 2007 shows that the parties were heard on the ap plication of limitation as well as on merit of the appeal. Ordersheet dated 6.-3. 2007 reads as under": "case called out. Parties counsel present. Heard both the parties on , application of limitation and merit of appeal. Fix 15/3/07 for judgment. " 23. Order dated 15-3-2007 passed by the appellate court is quoted below : "file was placed before me. This ap peal was filed from the State side alongwitn application under Section 5 Limitation Act for condonation of delay in filing appeal against judg ment dated 8. 5. 2006 passed by Civil Judge (JD) in Original Suit No. 57/ 2000 Sohan Lal vs. State of Uttaranchal. The ground for not filing appeal in time has been mentioned that at the time when judgment was passed the Tehri Dam tunnel was closed and by the gov ernment order the State machinery was busy in rehabilitation work for the vil lages which were to be submerged in the water of reservoir which could not be delayed because of the danger to sev eral lives. Rehabilitation of 37 villages was done at priority basis, hence in the meantime the judgment of the lower court could not be studied and appeal could not be filed within time and after completion of this work this appeal was filed without any delay. Respondent has opposed the appli cation on the ground that the Collector and Rehabilitation Director, who is the same person, has different machinery to examine the matter and appeal was filed after a delay of 114 days and each day has not been explained, hence applica tion should be rejected. After hearing both the parties and perusal of record, the fact explaining the delay cannot be denied. The Judgment was passed on 6. 5. 2006 and when time to file the appeal was to start, the Col lector, Tehri Garhwal alongwith his government machinery was busy in rehabili tation work which could not have been delayed because it was very important to save the lives of persons of villages which were to be submerged in the res ervoir of dam. Hence the cause of de lay explained is sufficient. It is a good ground and I do feel that the delay caused in filing the appeal should be condoned and the parties be heard on merit. Hence, the application under Sec tion 5 Limitation Act for condonation of delay is accepted. The delay in filing ap peal is hereby condoned. The appeal be admitted and registered accordingly. " 24. In view of the above, the argu ment advanced on behalf of the coun sel for the plaintiff-appellant that the lower appellate court has not given him the Opportunity of hearing is not borne out from the record. I find no illegality in the order passed by the appellate court. 25. Counsel for the appellant has referred the judgment of Krishna Ram Mahale (dead) by his L. Rs. v. Mrs. Shobha Venkat Rao reported in 1990 Civil Court Cases 365 (S. C.) and has submitted that even a trespasser cannot be evicted except in accordance with law. 26. Plaintiff has prayed for perma nent injunction restraining the respond ent from eviction him. On the other hand, the defendant has specifically pleaded that the land belong to the Tourist Department and the plaintiff has no concern with the said land. 27. The proceedings under Section 133 Cr. P. C. were. also initiated for re moving the occupant and sufficient no tice has been given for removal of the encroachment and on the basis of own statement of the plaintiff that the lease has been granted to some persons but no such lease has been granted in his favour, the plaintiff looses his right to get the injunction against the true owner. 28. In Mahadeo S Davlaram Shelke and others v. Pune Municipal Corpora tion and another reported in (1995) 3 SCC 33, it has been held as under : "9. It is settled law that no injunc tion could be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance their plaint on resolutions passed by the Municipality on 11-11-1972 and 29-11-1972. A reading of those resolu tions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceed ings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek re liance on two resolutions. They fur nish no prima facie right or title to the appellants to have perpetual in junction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any in junction against the rightful owner for eviction them. There is thus neither balance of convenience nor irrepara ble injury would be caused to the appellants. 10. In Woodroff s Law Relating to injunctions, 2nd revised and enlarged Edn. , 1992, at page 56 in para 30. 01 , it is stated as under : "an injunction will only be granted to prevent the breach of an obliga tion (that is a duty enforceable by law) existing in favour of the appli cant who must have a personal in terest in the matter. In the first place, therefore, an interference by injunc tion is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he as serts. " 29. The trial court while deciding the issue no. 1 has not decided the ques tion with regard to the prima facie title of the plaintiff and has observed as under: Hindi 30. So far as the proceedings un der Section 133 of the Cr. P. C. are con cerned, admittedly it was initiated against the plaintiff for illegal encroach ment. In view of the clear stand of the defendant that there is an encroachment on the part of the plaintiff to the extent of 6. 5 x 5 metre and the steps having been taken under Section 133 of Cr. P. C. to remove the unlawful obstruction hav ing been taken on the property of the State, I do not find any substantial ques tion of law in favour of the plaintiff. 31. So far as providing the alterna tive accommodation, the same is not available to the plaintiff, once a finding has bee recorded that the plaintiff is in illegal possession and the State Govern ment is the true owner of the land in dis pute. The plaintiff has admitted the ownership of the State Government, therefore the argument for providing the alternative accommodation is not avail able to the plaintiff- appellant in view of the findings recorded by the courts be low that the plaintiff is in illegal posses sion and the State Government is the true owner of the land in dispute. 32. In view of the above, no case for granting permanent injunction is made out so as to protect the posses sion of illegal occupant. However, it is well settled that no one can be deprived from protecting the rights granted in the lawful manner. In the present case, as already stated above, since the plaintiff has claimed the injunction against the true owner, therefore, he is not entitled for the relief claimed by him. 33. In view of the observations made above, I do not find any substantial question of law, second appeal lacks merit and is dismissed with costs. .;