AI Structured Summary
Not yet generated for this judgment
Judgment
Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the parties at the admission stage.
Appellant instituted Original Suit No. 1442 of 2005 against Smt. Sana Parveen and Smt. Shabnam Bahar for permanent prohibitory injunction seeking to restrain them from interfering in the possession of the appellant over the shop in dispute. It was also asserted by the appellant that the shop in dispute was constructed on Nazul land and he was in possession of the same for 40 years and on 26.9.2005 the Government had converted the Nazul land over which shop in dispute was constructed into free hold in favour of the appellant. However, it was not stated that how appellant came in possession? Whether he was owner or he was inducted as tenant and if inducted as tenant by whom?
Another suit i.e. Original Suit No. 53 of 2006 was instituted by Smt. Shabnam Bahar (defendant No. 2 in the first suit) against Shafiq real brother of appellant and appellant.
Both the suits were consolidated.
In the first suit Smt. Sana Parveen stated that she had no concern with the property in dispute. So the dispute remained in between appellant and Smt. Shabanam Bahar, respondent No. 1 in both the Second Appeals. The case of Smt. Shabanam Bahar was that the land over which shop in dispute was constructed was not nazul land; that in between Nagar Maha Palika and the previous owner similar dispute was raised in Original suit No. 189 of 1962 which was decided in favour of previous owner and the decision was maintained by the High court in Second appeal No. 949 of 1975 decided on 7.10.2004. It was further asserted that even thereafter proceedings under U.P. Public Premises Eviction of Unauthorised Occupants Act 1972 were initiated by the Nagar Nigam, Kanpur against the previous owner in the form of case No. 117 of 1988 which terminated in his favour. Smt. Shabnam Bahar specifically pleaded that initially Mohammad Haroon Siddiqui was owner of a bigger property of which shop in dispute was a very small part, he gifted the property to his wife Parveen Bano who sold the entire property including the shop in dispute to Shri Zafar Nayer, Advocate through registered sale deed dated 22.8.1989 who afterwards (on 16.3.2004) sold the same in two parts, one to Smt. Shabanam Bahar and another to Smt. Sana Parveen and the part in which shop in dispute is situate was purchased by Smt. Shabanam Bahar.
The area of the property/shop in dispute is 15.8 sq. meter.
Both the suits were decided on 8.9.2010 by Additional Civil Judge (Senior Division), Court No. 4/ACMM, Kanpur Nagar. The appellant had filed counter claim in the suit instituted by Smt. Shabanam Bahar. Appellant''s suit of 2005 as well as counter claim in the suit of 2006 was dismissed. Suit of 2006 instituted by Smt. Shabanam Bahar was decreed in part. Registered free hold deed dated 26.9.2005 executed in favour of appellant was declared to be null and void. He was directed to deliver possession of the property/shop in dispute to Smt. Shabanam Bahar within two months. However, the relief claimed by Smt. Shabanam Bahar in her suit for damages was denied.
Against the said judgment and decree Civil appeal No. 100 of 2010 was filed which was dismissed by Additional District Judge, Court No. 10, Kanpur Nagar on 7.7.2011 hence these two Second Appeals.
Second Appeal No. 945 of 2011 is stated to be directed against judgment passed in Original Suit No. 53 of 2006 and Second Appeal No. 948 of 2011 is stated to be directed against judgment of the trial court given in Original Suit No. 1442 of 2005.
I do not find least error in the impugned judgments. In Original Suit No. 189 of 1962 it had finally been decided that the land was not Nazul land. Accordingly, government/Nagar Maha Palika could not convert that into free hold in favour of the appellant. The judgment and decree passed in Original suit No. 189 of 1962 clearly operates as res-judicata as appellant is squarely deriving title from one of the parties in Original suit No. 189 of 1962 i.e. the State. Apart from the suit same thing was held in case No. 117 of 1988 initiated against predecessor-in-interest of Smt. Shabanam Bahar under U.P. Public Premises Eviction of Unauthorised Occupants Act 1972.
The appellant could not show that how he came in possession. He was not claiming adverse possession. Accordingly, title of Smt. Shabanam Bahar was rightly held to be proved by the courts below and decree for dis-possession was rightly passed. The free hold deed has also rightly been cancelled.
Both the Second Appeals are therefore dismissed under Order 41 Rule 11 C.P.C.