NAGAR PALIKA PARISHAD ROORKEE THROUGH ITS EXUEWCUTIVE OFFICER vs SMT. KANTA SACHDEVA

HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Appeal No.124 of 2011


Nagar Palika Parishad Roorkee through its Executive Officer
and another
….....Defendants/Appellants

Versus

Smt. Kanta Sachdeva and Another ..Plaintiffs/Respondents

Present:-

Mr. Lalit Miglani, Advocate for the appellants.
Mr. D.S. Mehta, Advocate for respondent no.1.
Mr. I.P. Kohli, Advocate for respondent no.2.

Hon’ble Siddhartha Sah, J.(Oral)

This Second Appeal has been preferred against the
judgment and decree dated 26.11.2011 passed by the
Additional District Judge, Roorkee, District Haridwar, in
Civil Appeal No. 20 of 2008, Smt. Kanta Sachdeva vs. Nagar
Palika Parishad, Roorkee and Another, whereby the said
appeal has been allowed and the judgment and decree dated
29.08.2008 passed by the Civil Judge (Senior Division),
Roorkee, District Haridwar, in Original Suit No. 51 of 2003
has been set-aside and thereby the appellate court has
decreed the suit for permanent injunction.
2. Brief facts of the case are that the
plaintiff/respondent No. 1 herein instituted a suit for
permanent injunction against defendant Nos. 1 and 2 in the
Court of Civil Judge (Senior Division), Roorkee, with the
pleadings that the plaintiff had purchased land situated
within Khasra Nos. 490 and 497, Village Ganeshpur,

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Roorkee, from the previous Bhumidhar with transferable
rights, who was the owner in possession, namely Kunwar
Rajendra Singh, through sale deeds dated 17.08.2000 and
16.01.2003. Further, in respect of Khasra No. 490, the
plaintiff also purchased land from Sri Narendra Verma and
Sri Yogesh Mathur through a registered sale deed dated
30.01.2003 and came into possession as Bhumidhar with
transferable rights pursuant to the said sale deeds. The
purchased property is situated at Dehradun Bypass road.
3. It is further pleaded that the property purchased
by the plaintiff is recorded as Abadi in the revenue records
since the past and it does not fall within the definition of
“land” as defined under Section 3(14) of U.P. Act No. 1 of
1951. The plaintiff leased out the said property to defendant
No. 3 for 30 years on the basis of an NOC issued by the
District Magistrate, Haridwar, for operating a retail outlet of
petrol/diesel, in which the containers of defendant No. 3 are
installed, wherein approximately 1200 litres of petrol is
stored. On the property, a big pit was dug. A container
having a capacity of more than 2,000 litres has been
installed and thereafter filled with petrol. On the property,
actual possession is of the lessee/tenant, defendant No. 3,
and the possession of the lessee/tenant is treated as the
possession of the landlord/owner.
4. In addition to this, a large area of land in the
vicinity was also demarcated, which took several days, but

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the defendants never raised any objection to it. In the plaint,
there is a reference to a previous suit which was decided in
favour of the vendor of the plaintiff. There is also a pleading
with respect to an earlier survey and demarcation of Khasra
No. 490 on the orders of the Hon’ble High Court. There is
also a reference that after measurement on the spot of
Khasra Nos. 490 and 495, the parties to Suit No. 130/96
arrived at a compromise and the case was decided. It is
further pleaded that during the pendency of Suit No.
130/96, the plaintiff purchased the property by virtue of a
registered sale deed dated 16.01.2003 and obtained
possession on the spot and was impleaded as a party in the
case, thereby acquiring all rights which were vested in the
vendor Rajendra Singh Jain, whose name was recorded in
the revenue records as Bhumidhar with transferable rights.
5. That it was further pleaded in the plaint that
defendant Nos. 1 and 2 have no concern with the property in
question, but are unauthorizedly and without any basis
interfering and attempting to forcibly take possession of the
property in question and also extending threats. On
04.09.2003, officials of defendant No. 1 came to the land and
attempted to interfere in the possession of the tenant (lessee)
of the plaintiff but failed in their wrongful intentions, and
while leaving, extended threats regarding taking possession
of the plaintiff’s property. Since defendant Nos. 1 and 2 were
not paying heed, the necessity arose to institute the suit.

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Thus, the suit was instituted for permanent injunction
against defendant Nos. 1 and 2, restraining them from
directly or indirectly interfering in the possession and use of
the property in question of the plaintiff’s lessee.
6. The aforesaid suit was registered as O.S. No. 51 of
2003, Smt. Kanta Sachdeva vs. Nagar Palika Parishad and
Others. The defendant Nos. 1 and 2 contested the suit by
filing their written statement denying the averments made in
the plaint and pleading that the property in dispute is not
part of Khasra Nos. 490 and 497, but is part of Khasra No.
495/2, in which appellant No. 1 is the owner in possession.
The appellants further pleaded in the written statement that
the plaintiff/respondent has admittedly executed a lease
deed in favour of defendant/respondent No. 2 for 30 years;
therefore, the plaintiff/respondent, who is not in actual and
physical possession, has no locus standi to file the suit for
permanent injunction.
7. It was further pleaded in the W.S. that the plaintiff
is not in actual possession of the suit property and has no
right to institute the suit; since the property in question falls
within the U.P.Z.A. & L.R. Act, therefore, without resorting to
Section 143 of the U.P. Zamindari Abolition & Land Reforms
Act and by using land contrary to law, the plaintiff has lost
her rights by virtue of Sections 165, 166, 167, and 181 of the
U.P.Z.A. & L.R. Act; the suit is barred by Section 331 of the
Z.A. Act; the suit property is not situated in Khasra Nos.

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490/497, Village Ganeshpur, but in Khasra No. 495/2, the
ownership of which vests in the Nagar Palika; Mr. Bhram
Singh, Advocate has not conducted any measurement or
survey or demarcation of Khasra Nos. 490/495; O.S. No. 130
of 1996 related to land in Khasra No. 490, and the southern
portion of Khasra No. 490 lies between Khasra Nos. 495/1
and 495/2. In Khasra No. 495/1 there is a road, and Khasra
No. 495/2 is barren land, the ownership of which vests in
the Nagar Palika.


8. After the completion of pleadings, the Trial Court
framed the following 8 issues:-
“(i) Whereas the plaintiff/respondent is in
possession of disputed Khasra Nos.490 and 497?
(ii) Whether the disputed property is situated in
Khasra Nos.495/2, as pleaded by defendant in its
W.S.?
(iii) Whether disputed property is situated in
Khasra Nos.490 and 497?
(iv) Whether the suit of the plaintiff is barred
under Section 33 1 of the U.P. Act No.1 of 1951?
(v) Whether the plaintiff has given the disputed
property to the defendant no. 3 for the purpose of
retail sale?
(vi) Whether the plaintiff is not entitled to
institute the suit as pleaded in para 2 of the written
statement of the defendant?

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(vii) Which relief, if any, is the plaintiff entitled to?
(viii) Whether by giving the disputed property on
lease the rights of the plaintiff over the disputed
property have extinguished? If yes, its effect?”


9. In support of her case, the plaintiff brought on
record a number of documentary evidence as also the
defendant nos.1 & 2 filed a number of documents in support
of their case. To prove her case, the plaintiff examined four
witnesses whereas to prove its case, the defendant Nagar
Palika, Roorkee examined one witness.


10. After hearing the learned counsel for the parties,

the trial court/Civil Judge (S.D.), Roorkee dismissed the suit
vide judgment and order dated 29.08.2008 mainly on the
premise that since the plaintiff had granted a lease in favour
of defendant no. 3 vide a registered lease deed dated
26.08.2008 she has lost the actual physical possession and
on the date of institution of the suit, she was not in
possession of the same nor was she owner of the disputed
property as per provisions of Section 189(aa) of the U.P.Z.A.
and L.R. Act and having come to such a conclusion the suit
of the plaintiff was dismissed.



11. On Issue Nos.1 and 3, the Trial Court gave a
finding that since there is no similarity between the site
plan/description of property and the property in question,
therefore, the plaintiff failed to prove Issue Nos.1 and 3.

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Issue no.2 was decided by the trial court to the effect that
the defendant Nos .1 and 2 failed to prove that entire property
is situated in Khasra No.495/2 . The Issue No. 4 was decided
against the defendant nos.1 and 2 and that the Court had
jurisdiction to hear the suit. Issue No.5 was decided to the
effect that there is no adverse evidence on record and it is
admitted fact need not be proved. Issue Nos.6 and 8 were
decided to the effect that in view of provisions of U.P. Act
No.1 of 1951 and U.P. Act No.9 of 1957 and the case law the
title of plaintiff has extinguished and from the date of
registration of lease deed dated 26.08.2008, the plaintiff has
no right or title on the property in question.

12. Aggrieved against the judgment/decree of the trial
court dated 29.08.2008, the plaintiff preferred an appeal
before the District Judge, Haridwar which was registered as
Civil Appeal No.20/2008, Smt. Kanta Sachdeva vs. Nagar
Palika Parishad, Roorkee and others. The said appeal was
finally heard and allowed by the first appellate court/
Additional District Judge, Roorkee vide judgment and order
dated 26.11.2011, whereby the trial court’s judgment/order
dated 29.08.2008 was set aside and the original suit of the
plaintiff was decreed against the defendant nos. 1 and 2 for
permanent injunction. The cross objections of defendant
nos.1 and 2 were dismissed.

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13. In its detailed judgment, the first appellate court
revisited the issues and after considering the survey
commission report and other documents on record came to
the conclusion that the western boundary of Khasra No.490,
Village Ganeshpur is as per spot and likewise being the
Sajra, the said fact was not stated to be wrong by the
defendant from which it is clear that the disputed property is
situated in Khasra No.490 whose no part is in Khasra
No.495/2. Also Khasra No.490 and southern boundary of
Khasra No.491 are in one line, therefore, the disputed
property is a proved to be in Khasra No.490 as is clear from
perusal of the report of survey commission. The first
appellate court also came to the conclusion that the property
sold is identified from its boundaries and by mentioning any
other Khasra number a third party cannot derive any
benefit. The first appellate court also held that inspite of
grant of lease the lessor’s constructive possession always
remains and defendants do not deny plaintiff’s ownership
and on the basis of case law, returned the finding that the
plaintiff is owner in possession of disputed property. On
Issue Nos.6 and 8, the first appellate court considered that
in para no.2A of the plaint the land is not being used for the
agriculture or agricultural related work has been pleaded
which has not been denied in W.S.. The first appellate court
relied upon the judgment of the Hon’ble Supreme Court in
the case of Commissioner of Income Tax, Madras vs. M/s.

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Gemini Pictures Circuit Private Ltd. reported in AIR 1996 SC
1522 being applicable in the case that the disputed property
would not be deemed to be agricultural land and by
execution of lease deed, the rights of plaintiff would not be
extinguished. The first appellate court held that the plaintiff
had right to institute the suit against the defendant nos.1
and 2 and thus proceeded to allow the appeal of the plaintiff.


14. The said judgment and order dated 26.11.2011
has been challenged by the defendant nos.1 and 2 in this
second appeal. The instant second appeal has been
admitted vide order dated 10.01.2012 on the following
substantial questions of law:-
“(i) Whether a decree of permanent injunction
can be granted on a property which was leased out
and over which the plaintiff has no actual or physical
possession?
(ii) Whether the lower court has erred in
appreciating the revenue records, which were placed
before it in evidence?”

15. Heard the learned counsel for the parties at length
and perused the record.
Substantial Question of Law No.(i)
16. While addressing the first substantial question of
law, the learned counsel for the appellant Mr. Lalit Miglani,
submitted that the permanent injunction could not have

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been granted on a property which has been leased out by the
plaintiff defendant no.3 and she was not in actual physical
possession over the said property. The learned counsel for
the appellant would submit that in the absence of actual
physical possession, the first appellate court fell into error in
upsetting the judgment of the trial court and by granting a
decree of permanent injunction over the property in
question.

17. Learned counsel for the appellant would rely upon
the judgment in the case of Balkrishna Dattatraya Galande
vs. Balkrishna Rambharose Gupta and Another, (2020) 19
SCC 119, and drew the attention of the Court to para 8 of
the aforesaid judgment which is extracted as under:-
8. In a suit filed under Section 38 of the Specific Relief
“
Act, permanent injunction can be granted only to a person
who is in actual possession of the property. The burden of
proof lies upon the first respondent-plaintiff to prove that he
was in actual and physical possession of the property on
the date of suit. The first appellate court drew inference of
the possession of the first respondent-plaintiff from purshis,
Ext. 41, and from the circumstances that he has obtained
permission from the Corporation for carrying out the
repairs. The Commissioner's report dated 2-11-1988 which
was referred to in extenso in the order passed in the
interlocutory application (Ext. 5) dated 17-10-2005 rejecting
the first respondent's prayer for temporary injunction
shows the poor condition of the suit premises prior to filing
of the suit RCS No. 430 of 2004. The Commissioner's report
indicates that even after replacing the roof by new tin sheet,
the premises were not fit to carry on business.”


18. The learned counsel for the appellant would
submit that the permanent injunction can be granted only to
a person who is in actual possession of the property.

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19. The aforesaid judgment of the Hon’ble Supreme
Court would not be attracted in the factual matrix of the
present case inasmuch as in the present case, the
submission of the learned counsel for the appellant is that
the possession of the lessee cannot be deemed to be the
possession of the lessor. Thus the judgment is clearly
distinguishable on facts.

20. On the other hand, learned counsel for the
plaintiff/respondent no.1 would submit that a lessor
remains in constructive possession even after leasing out the
property to a lessee. He submits that the possession of the
lessee would be deemed to be the possession of the lessor.

21. The learned counsel for the plaintiff/respondent
relied upon the judgment of the Hon’ble Supreme Court in
the case of Sadashiv Shyama Sawant and others vs. Anita
Anant Sawant reported in (2010) 3 SCC 385, and
particularly relied upon para nos.21, 22 and 23 thereof
which are being extracted hereunder:-
“21. A landlord by letting out the property to a tenant does
not lose possession as he continues to retain the legal
possession although actual possession, user and control of
that property is with the tenant. By retaining legal
possession or in any case constructive possession, the
landlord also retains all his legal remedies. As a matter of
law, the dispossession of tenant by a third party is
dispossession of the landlord. The word “dispossessed” in
Section 6(1) must be read in this context and not in light of
the actual possession alone. If a tenant is thrown out
forcibly from the tenanted premises by a trespasser, the
landlord has implied right of entry in order to recover
possession (for himself and his tenant). Similarly, the
expression “any person claiming through him” would bring
within its fold the landlord as he continues in legal
possession over the tenanted property through his tenant.

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22. As a matter of fact, on plain reading of Section 6(1), it
is clear that besides the person who has been dispossessed,
any person claiming through him can also file a suit
seeking recovery of possession. Obviously, a landlord who
holds the possession through his tenant is competent to
maintain suit under Section 6 and recover possession from
a trespasser who has forcibly dispossessed his tenant. A
landlord when he lets out his property to the tenant is not
deprived of his possession in the property in law. What is
altered is mode in which the landlord held his possession in
the property inasmuch as the tenant comes into physical
possession while the landlord retains possession through
his tenant.

23. The view of the Calcutta High Court that where the
tenant was forcibly ejected from the land by the third party,
it may reasonably be held that landlord has also been
dispossessed is the correct view. We find ourselves in
agreement with the view of the Bombay, Patna, Pepsu and
Rajasthan High Courts and hold, as it must be, that there
is nothing in Section 6 of the Act to bar a landlord from
suing a trespasser in possession even when, at the date of
dispossession, the property is in actual occupation of a
tenant entitled to possession. The views expressed by the
Madras High Court in Veeraswami Mudali [AIR 1926 Mad
18] and Ramamanemma [AIR 1934 Mad 558] and by the
Nagpur Judicial Commissioner in Ramchandra [AIR 1928
Nag 313] do not lay down the correct law.”
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22. After considering the rival submissions of the
learned counsel for the parties, it is clear that it is not the
position of law as it is being tried to be argued by the learned
counsel for the appellant. The correct legal position
regarding the constructive possession of the landlord and the
tenant has been clearly spelt out in the judgment of the
Hon’ble Supreme Court in the case of Sadashiv Shyama
Sawant ( supra ). Thus even after the landlady/lessor in the
present case had granted lease to the defendant no.3, she
continues to be in legal possession over the lease property
and could maintain a suit with respect to the leased out
property in question.
23. In the aforesaid judgment of the Hon’ble Supreme
Court, it has been clearly held that a landlord who holds the

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possession through his tenant is competent to maintain suit
under Section 6 and recover possession, if there is forcible
dispossession of his tenant. The landlord when he lets out
his property to the tenant is not deprived of his possession in
the property in law. Thus this Court has no hesitation in
answering the substantial question of law no.(i) in favour of
the plaintiff and against the defendant nos.1 and 2 to the
effect that the decree of permanent injunction can be granted
on the property which has been leased out over which the
plaintiff has no physical or actual possession and the first
appellate court did not commit any error by granting
injunction in favour of the plaintiff in the present case.

Substantial Question of Law No.(ii)


24. Learned counsel for the appellant would submit
that the first appellate court has erred in appreciating the
revenue records. The learned counsel has made two folds on
arguments. Firstly, that the revenue records have not been
appreciating in the correct perspective by the first appellate
court and also the Survey Commission Report has been
accepted by the first appellate court without considering the
objections against it.

25. Learned counsel for the plaintiff/respondent no.1
would argue that the first appellate court has considered
Sajra and the Khatauni entries in their correct prospective

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and only after due deliberation came to the conclusion that
the property in question is instituted in Khasra No.490.

26. It is also important to point out that the trial court
and the first appellate court have concurrently held that the
disputed property is not situated in Khasra No.495/2. On
which, the learned counsel for the appellant would submit
that what is material is whether the disputed property is
situated in Khasra No.490 or not and not whether the
property is not situated in Khasra No.495/2. He further
submits that the Survey Commission Report states that the
disputed property is wholly situated in Khasra No.490,
whereas it has been the consistent case of the plaintiff that
the disputed property is situated partly in Khasra Nos.490
and 497 and as such, the first appellate court’s judgment
cannot be sustained and he has further contended that
without deciding the objections against the Survey
Commission Report, the Survey Commission Report has
been accepted.

27. The present substantial question of law pertains
to whether the first appellate court has erred in appreciating
the revenue records which were placed before it. In the
present case, the first appellate court has after going
through the record and after examining the Shajra (map) and
the Khasra which are revenue records pertaining to the
property in question has come to the conclusion that the

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disputed property is situated in Khasra No.490. Moreover,
once the contention of the defendant nos.1 and 2 about the
disputed property being situated in Khasra Nos.495/2 has
not been accepted and in fact and it has concurrently been
held that the disputed property is not situated in Khasra
No.495/2, hence the logical conclusion would be that the
property in question is situated in Khasra No.490 and the
revenue records have been properly appreciated.

28. In its detailed judgment, the first appellate court
revisited the issues and after considering the survey
commission report and other documents on record came to
the conclusion that the western boundary of Khasra No.490,
Village Ganeshpur is as per spot and likewise being the
Sajra, the said fact was not stated to be wrong by the
defendant from which it is clear that the disputed property is
situated in Khasra No.490 whose no part is in Khasra
No.495/2. Also Khasra No.490 and southern boundary of
Khasra No.491 are in one line, therefore, the disputed
property is a proved to be in Khasra No.490 as is clear from
perusal of the report of survey commission.

29. In such view of the matter, the substantial
question of law no.(ii) also deserves to be answered in favour
of the plaintiff against the defendant nos.1 and 2 to the effect
that the first appellate court has not erred in appreciating
the revenue records placed before it.

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30. Since the substantial questions of law have been
answered against the appellant/defendant nos.1 and 2,
hence the judgment of the first appellate court does not
warrant any interference and the present second appeal
deserves to be dismissed.


31. The second appeal is dismissed accordingly. The
judgment of the first appellate court is affirmed.



32. Let original records be transmitted to the court
concerned.




(Siddhartha Sah, J.)
21.05.2026


RS/BS