Court No. - 1 Case :- SECOND APPEAL DEFECTIVE No. - 369 of 2009 Petitioner :- Kamla Shankar Respondent :- Amar Nath Petitioner Counsel :- Lalji Pandey Hon'ble Rakesh Sharma,J.
Heard learned counsel for the appellant and perused the impugned judgment
and record.
It emerges from perusal of record that an injunction suit no.1781 of 1996
Kamla Shanker Vs. Amar Nath was preferred in the court of Additional
District Judge/Special Judge, SC/ST Act, Allahabad seeking permanent
injunction against the respondent. It was claimed by the appellant that plot
no.191/233 measuring 2 Biswa 5 Dhoor situated in Village Barbaspur Tapp,
Manda, Tehsil Meza, Pargana Khairagarh, district Allahabad was allotted to
the petitioner by the Gaon Sabha. On one occasion the appellant has
submitted that he was having his construction from the days of his ancestors.
The claim was denied by the respondent on the ground that the said land in
dispute was never allotted to the appellant by the Gaon Sabha. The Gaon
Sabha vide resolution dated 7.7.1985 had allotted one Biswa to the appellant
and one Biswa to the respondent Amar Nath. Both the courts below have
taken note of the oral and documentary evidence including khatauni entries of
year 1403 Fasli. It has been found that in Khasra of 1403 Fasli a note has been
recorded that the appellant was having illegal possession (Anadhikar Kabza)
over the land in dispute i.e. 191/233 measuring 2 Biswa 5 Dhoor. Proceedings
under Section 122 (b) were also initiated. No revenue and consolidation
entries were shown to the court to prove that appellant was having lawful
possession over the land in dispute. The court had taken note of the receipt
paper no. 60Ga and the oral statements of the witnesses. The appellant had
failed to define the boundaries of the plots, nature and status of the land.
Moreover, he could not demonstrate before the courts below that he was legal
and valid allottee of the aforementioned land in dispute. Both the courts below
have recorded concurrent findings of fact and concluded that the appellant
was having an illegal and unauthorized possession over the land in dispute.
No substantial question of law is made out and the appeal under Section 100
of C.P.C. is accordingly dismissed.
Order Date :- 4.1.2010
pks