Madhya Pradesh High Court
Shayam Sunder vs Nagar Palika Parishad on 26 October, 2017
1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
Second Appeal No.302/2000
Shyamsunder S/o Onkarlal (Bajaj) ... Appellant
Vs.
Nagar Palika Parishad, Khargone
and others. .... Respondents
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Shri Vinay Zelawat, learned senior counsel with Shri A.S.
Parihar, learned counsel for the appellant.
None for the respondents.
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Whether approved for reporting :
JUDGMENT
(Delivered on 26/10/2017) 1/ This second appeal under Section 100 of the CPC is at the instance of the plaintiff challenging the reversal judgment of the first appellate court dated 5.7.2000 passed in Civil Appeal No.5- A/96, whereby the judgment of the trial Court dated 15.11.1994 in C.S. No.6-A/84 has been reversed and the suit filed by the appellant has been dismissed.
2/ The appellant had filed suit for permanent injunction with the plea that the Gumti on the road side at Gandhi Road, Khargone was given on lease on 12.1.1984 along with the land to Gopikishan and he had transferred the Gumti to Hardasmal. Thereafter Hardasmal has transferred it to Vallabhdas Onkardas vide transfer document dated 18.11.1967 and in partition Onkarlal had given the Gumti to the appellant and appellant had become owner thereof. The appellant had filed the application dated 2 11.11.1981 before the respondents seeking permission to construct wall in place of Tin in the Gumti and the sanction was not granted, therefore, on the basis of the deemed sanction the appellant had constructed the wall but the respondents had given the notice Ex.P/2 and P/3 alleging it to be unauthorized construction and mentioning different areas asking to remove the construction, hence the injunction was sought.
3/ The respondent by filing the written statement had raised the plea that the transfer of Gumti in favour of appellant was illegal and the appellant had raised unauthorized construction, therefore, notice was given for removal of the said construction.
4/ The trial Court had decreed the suit finding that the unauthorized construction on the land of the Corporation is not proved and accordingly restrained the respondents from demolishing the construction. The first appellate court has reversed the judgment of the trial Court by holding that the appellant had done unauthorized construction and accordingly dismissed the suit.
5/ This Court vide order dated 31.1.2001 had admitted the appeal on following substantial question of law:-
"Whether the first appellate court has committed any illegality in reversing the finding recorded by the trial Court and also committed any patent illegality in recording the wrong finding contrary to settled principle of law?"
6/ Learned counsel for the appellants submits that in the notice Ex.P/2 & P/3 contradictory allegation about the extent of unauthorized construction was made and that no unauthorized construction has been done by the appellant, therefore, the first appellate court ought not to have reversed the judgment of the trial Court.
37/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the trial Court had framed several issues and most of the issues were answered against the appellant but while answering issue No.6(A), it was found that the unauthorized construction was not proved, therefore, the suit was decreed by the trial court.
8/ The trial Court had found that no lease deed of the land or for the Gumti has been produced, therefore, the appellant could not establish that the land or Gumti was given on lease by the respondents. The trial Court further found that the transfer of Gumti made by Haridasmal to Vallabhdas was also not lawful because the transfer was for consideration of Rs.2000/- but without executing any registered documents. It has further been found by the trial Court that only Gumti was given by the respondent No.3 to the appellant temporarily on lease and that no document relating to tenancy or lease was executed and that it is not proved that Gumti and land was given on lease and that the appellant was granted permission only to construct two walls on south and west side and any other construction raised by the appellant was unauthorized. The aforesaid findings have not been disturbed by the first appellate court. The first appellate court has also found that only Gumti was given and the land was not leased out and construction has not been done on the land belonging to the appellant but it has been done on the public land.
9/ The only reversal of finding by the first appellate court is about the encroachment and unauthorized construction. The trial Court had found that no unauthorized construction was done whereas the first appellate court has found that the appellant had constructed double storeyed Pakka house without permission, whereas the appellant was granted permission to constructed the walls on south and west side of the Gumti. The finding relating to construction of double storeyed house appears to have been arrived 4 at on the basis of notice (Ex.P/2) but in the notice Ex.P/2 & P/3 contrary statement about area of Gumti and extent of unauthorized construction has been made. In the notice (Ex.P/2) it is mentioned that the lease area of Gumti was 10x12 ft. whereas in Ex.P/3 the area of Gumti is mentioned as 10x14 ft. The extent of unauthorized construction mentioned in Ex.P/3 is more than the area mentioned in Ex.P/2, whereas Ex.P/2 is later in point of time. As against this PW- 1 Shyam Sunder in Para-15 of his statement had stated that he had not constructed double storeyed house and no evidence in rebuttal was produced by the respondents.
10/ Having regard to the aforesaid, I am of the opinion that there is no evidence to support the finding of the first appellate court that the appellant had constructed double storeyed house.
11/ Though the record reflects that some unauthorized construction has been done by the appellant but before taking action, the respondents are required to clearly disclose the extent of unauthorized construction. If the respondents want to take any action on the basis of the finding that no lease of land was executed and only Gumti was given on lease temporarily, then also they are required to give proper notice to the appellant before taking any action of demolition or dispossession.
12/ Having regard to the aforesaid, the impugned judgment cannot be sustained and is hereby set aside by restraining the respondents from taking any action for demolition of the Gumti in question, except after giving proper notice and disclosing the extent of unauthorized and illegal construction. Let the decree be prepared accordingly.
13/ Appeal is accordingly disposed off.
(PRAKASH SHRIVASTAVA) Judge Trilok.