Kailash Narayan Rathor vs Municipal Council Thr

The present second appeal has been filed challenging the judgment and decree dated 17. 12. 2016 passed by the First Additional District Judge in Civil Appeal No. 13-A/ 2016 whereby the judgement and decree dated 29. 2. 2016 passed by the First Civil Judge Sheopur in Civil Suit No. 5-A/13 is affirmed. A civil suit for possession and mandatory injunction was filed by the appellant plaintiff wherein it is stated that in ward no.14 (earlier ward no. 19) Sheopur, there is ancestral house of the plaintiff, boundaries of the aforesaid house is shown in the plaint. It is submitted that the house was constructed by his ancestors and on the disputed portion chabutra and a shed has been constructed and behind the chabutra there is a house of the plantiff along with shops which is constructed up to Sabzi Mandi. It is submitted in the plaint that the disputed portion on which the house is constructed is of ownership of the plaintiff and his ancestors have taken permission on 24.4.1957 and only after permission of the concerned authorities, the construction of house, chabutara and shed had been made. The plaintiff has acquired the property by way of succession and is in possession of the same. He is also making payments towards the property tax. The notice has been served on the plaintiff dated 14.9.2012 asking him to remove the encroachment of the area 7ft x 17.6 ft within a period of 15 days failing which proceedings under section 187 and 223 of Nagar Palika Adhiniyam, 1956 will be initiated. The plaintiff has preferred a writ petition before this court which was finally disposed of with direction to the Municipal Corporation to provide opportunity of hearing to the petitioner and thereafter take any action. The authorities after hearing the petitioner has passed an order and has found that there is encroachment of 18ft x 4 ft. over entire length of the house. The plaintiff has again approached this court by filing writ petition which was disposed of with direction to the petitioner to file Civil Suit and in terms of liberty extended by this court, the present civil suit was filed. It is further alleged that during pendency of the civil suit on 19. 12. 2012, at around 9 a.m. respondent authorities have forcefully demolished the chabootra and shed made by the plaintiff. It is further alleged that the respondents are trying to raise construction over the disputed land therefore he has filed the present civil suit seeking mandatory injunction and recovery of possession.

Written statement was filed denying all the plaint averments. It is contended that the plaintiff has encroached upon the public way, a notice was made to remove his encroachment but despite of service of notice encroachment was not removed. He has filed an application under section 91 and 151 CPC for granting him interim relief but the same was not extended by the court and in an encroachment removable drive, the encroachment made on public way measuring 18 x 4 ft. has been removed by the respondent authorities. After removal of the encroachment CC Nala has been constructed. There is no possession of plaintiff over the land in dispute. Learned trial court after considering the aforesaid averments made by the parties has made the following substantial questions of law:-

i. कि, विवाद्यक क्र0 1 को साबित करने का भार अपीलार्थी/वादी पर और विवाद्यक क्र0 2 को साबित करने का भार उत्तरार्थी/प्रतिवादी पर था,

ii. कि, विद्वान विचारण न्यायालय ने आलोच्य निर्णय की कंडिका 18 में न्यायसिद्धांतों के विपरीतžअतिक्रमण की उपधारणाई१Â१किया है,

iii. कि, उत्तरार्थी/प्रतिवादी के द्वारा प्रदान की गई निर्माण अनुमति सन् 1957 पर किये गये निर्माण कार्य को उत्तरार्थी/प्रतिवादी के द्वारा 55 वर्श पश्चात् हटाया गया है,

iv. कि, आलोच्य निर्णय की कंडिका 14 में अपीलार्थी/वादी के अभिवचन को अस्पश्ट माना गया है, जिसे स्पश्ट करने का निर्देश एवं अवसर प्रदान नहीं किया गया।

The plaintiff has examined Kailash Narain Rathore (PW-1) and Bhagwandas Sawarankar (PW-2) and has filed documents such as order passed in W.P. No. 7212/2012 dated 28.2. 2012 as Ex. P/1, order passed in W.P. No. 8722/2012 dated 04.12. 2012 as Ex. P/2, Postal receipt Ex. P/3, notice dated 10. 12. 2012 as Ex. P/4 permission certificate issued by the municipal committee as Ex. P/5, map as Ex. P/6, incomplete map as Ex. P/7 and in secondary evidence he has filed photocopy of the map Ex. P/8.

The trial court after hearing arguments advanced by the parties and perusing the documents on record has established that the plaintiff has failed to prove his case beyond reasonable doubt and accordingly dismissed the civil suit. While dismissing the suit, the trial court in para 14 has categorically stated that the basic document on which the plaintiff has placed heavy reliance is annexure P/5 which is permission (Ijazat nama) given by the municipal committee to the ancestors of plaintiff for construction of the house in question. The trial court has found that the documents annexure P/5 being a permission document is only for the construction of the house and not for the construction of chabutra and shed thereon. The trial court has observed that the plaintiff himself in para-2 of the plaint has stated that his house is constructed behind the chabutra and the plaintiff has failed to submit any document with respect to permission being granted for construction of shop and chabutra. Therefore the construction being without any permission or authority and public way was being encroached by the plaintiff. The encroachment was removed in an encroachment removal drive and as on date CC Nala has been constructed and is in existence. First Appeal was preferred by the plaintiff appellant being Appeal Number 13-A of 2016 which was finally heard and decided by the appellate court after re-appreciation of entire evidence and learned appellate court has observed in para-17 that annexure P/5 which is permission document (Ijazat Nama) and the map annexure P/6 and P/7. The permission was only for construction of house and not for the construction of shop and chabutra. The plaintiff has not produced any document to show that he was granted permission for construction of chabutra and shop. The learned trial court has rightly found that the plaintiff has encroached on public way and accordingly in encroachment removal drive chabutra has been demolished and public way was cleared and there after CC Nala has been constructed. The appellate court wide its judgment dated 17th December 2016 has affirmed the judgement and decree of the trial court. Being aggrieved by the judgement and decree passed by both the courts below, present Second Appeal has been filed. The plaintiff appellant has formulated following substantial questions of law:-

"(A) Whether the judgment and decree has been passed by both the courts below without considering the admission in para-3 of the written statement with regard to grant of permission and the platform was within the permitted area?

(B) Whether, without cancellation of permission or revocation of permission granted on 24.4. 1957 the respondent was having authority to take action against the plaintiff?

(C) Whether, the finding given by learned trial Court in para 14 of the judgment and confirmed by the appellate Court is perverse in view of Ex. P/5, permission dated 24.4. 1957."

During the course of arguments, substantial question of law no. C was mainly pressed by the counsel for the appellant.

The counsel for the appellant has heavily relied upon document P-5 which is permission granted by the municipal committee on 24th April 1957. The counsel for the appellant has argued that after getting aforesaid permission the entire construction raised by the ancestors of the plaintiff and there is no encroachment on any point of time and the trial court has committed grave error in not considering the document exhibit P5 which is Ijazat Nama of the Year 1957 and has wrongly given findings regarding encroachment. From the perusal of the document exhibit P5 which is Ijazat Nama for construction of house only. The aforesaid aspect has been categorically dealt with by the learned trial court in para-14 of the judgement and thereafter by the appellate court. Both the courts have categorically held that the plaintiff could not prove that the construction of chabutra and shed are in pursuance to the Ijazat Nama certificate exhibit P5. The plaintiff has not filed relevant documents to demonstrate Ijazat Nama includes chabutra which admittedly is a public way and after removal of the encroachment now the CC Nala has been constructed. Apart from this a report from the Revenue Inspector was also called dated 13.01. 2012. From the perusal of the aforesaid, it is clear that the land bearing survey no. 923 a road was constructed and the measurement of the road was 30ft. It was also clear that aforesaid measurement does not include Nala which were adjoining to the road, meaning thereby after the road there must be nala. Thus the contention of the counsel for the appellant that considering the measurement also aforesaid chabutra and shade are not included in the road. The petitioner has failed to demonstrate that there was any permission or ownership of the chabutra in question. Both the courts below has minutely dealt with the aforesaid issue and pass the judgment and decrees. There are concurrent findings of both the courts below.

Accordingly, no substantial question of law arises in the pre sent appeal. The appeal fails and is hereby Dismissed.