Pankaj Mithal, J. - (1.) HEARD Smt. Sharada Chauhan learned counsel for the defendant appellants and Sri A.K. Aditya learned counsel for the respondents.
(2.) ONE Kuber now deceased who is represented by his heirs and legal representatives as respondents had instituted a suit for permanent injunction against the defendant restraining them from dispossessing him from the land shown in read lines in the plaint map and from interfering in his possession and constructions situate over it. The suit was instituted on the allegations that the aforesaid land is part of araji no. 264/1 which has an area of 2 acres 96 decimal. His predecessor in interest Saudagar had occupied 18ft./35ft., of the aforesaid land about 40 years ago and had constructed a Kothari on a part of it and this area in his possession has been allotted new number S11/9-M/1 by the Municipal Board and he is occupying and living therein ever since then. The defendant appellants who have unauthorizedly occupied some other area of araji no. 264/1 are keeping in eye over the land in his possession and unauthorizely intends to take possession of the same. The defendants in reply put up the defence that they have been leased out 2 biswa 12 dhoor of the land of araji no. 264/1 on 25.2.1936 on which they constructed their house which has been allotted number S11/9B by the Municipal board. The plaintiff was a tenet since 1974 in one of the adjoining house no. 11/9A from which he was evicted. Therefore, the predecessor of the defendants permitted him to reside in one kothari on rent of Rs. 20 per month. Therefore, the kothari in which the respondents are now living is part of the land which had been leased out to their predecessor in interest. On the basis of the aforesaid pleadings of the parties, 7 issues were framed by the court of first instance and the parties were permitted to adduce evidence. Finally, the suit was decreed vide judgment and order dated 21.11.2007. Against the decree so passed, the defendant appellants preferred civil appeal which has been dismissed by the lower appellate court vide judgment and order dated 30.4.2009. It is against the aforesaid judgments, orders and decrees of the courts below that this second appeal has been preferred. One of the arguments raised by Smt. Sharada Chauhan is that that the suit was bad for non joinder of necessary parties as the Municipal Board/State of U.P., was not made party through the land of araji no. 264/1 happened to be a nazul land. The argument is misconceived. The courts below have examined this aspect while dealing with issue no. 5 and has held that the plaintiff/respondents have not claimed any relief either against the State of U.P., or against the Municipal Board. None of the above two parties are threatening to dispossess the plaintiff respondents from the land in dispute or are intending to interfere with their possession. Therefore, the courts below held that the suit is not bad for non joinder of the parties. The suit is basically for the relief of permanent injunction and if the plaintiff respondents do not consider it proper to seek the said relief against the aforesaid two parties, the appellants are no one to compel them to seek such a relief and to get them implead in the suit. The relief of injunction is of personal nature and the decree of injunction passed would not be applicable and binding upon the persons who are not party to the suit.
(3.) THE second submission of the learned counsel for the appellants is that the courts below were not justified in decreeing the suit holding the plaintiff respondents to be the owner of the disputed land without the true owner being made party to the suit ie, Municipal Board/State of U.P. This argument is also not acceptable on the face of the record and the finding recorded by the courts below. THE courts below while deciding issue no. 1 have recorded a categorical finding that the plaintiff respondents are in actual physical possession of the land in dispute and therefore their possessory title is sufficient for grant of injunction against the defendants appellants. THE courts below have not declared the plaintiff respondents to be the owners of the land in dispute. THErefore, the argument raised is without substance. Lastly, it has been submitted by the learned counsel for the appellants that the land in dispute is part of the land which has been leased out in their favour and therefore the plaintiff respondents are not entitle to any protection even though the lease of the defendant appellants has expired. The evidence of the defendants appellants itself shows that though they alleged that 2 biswa 12 door of araji no. 264/1 was leased out in their favour but their witnesses were not aware of the actual area of the land leased out to them. The lease of land was not even brought on record even though admitted to be in possession of one of the witnesses. Only a certificate of the District Magistrate certifying that part of the aforesaid araji no. 264/1 was leased out in the name of Panchu Shankar predecessor in interest of the defendants appellants on 24.6.1966 which lease is expired was brought on record which is not sufficient to prove that the land in dispute is part of the land which was given on lease to the defendant appellants. Apart from the above, the courts below after considering the entire evidence have returned a finding of fact that the defendant appellants have failed to prove that the land in dispute is part of the land which was leased out defendants/appellants. In view of the above, this submission also fails and is rejected.;