Kailash Narayan vs Nagar Panchayat

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal filed by the plaintiff is directed against the judgment and decree dated 28.03.2005 passed by the 1st Additional District Judge, Datia in Civil Appeal No. 31A/2004 confirming the findings recorded by Civil Judge, Class-I, Bhander in Civil Suit No. 20A/1999 by judgment and decree dated 29.11.04 by which the suit filed by the plaintiff seeking declaration of title on the basis of adverse possession and temporary injunction has been dismissed.

The plaintiff''s case in brief was that since 1985 he is in possession of the suit shop and running a hotel business therein. In 1990 defendant forcibly tried to dispossess him. On filing case it was dispossessed upto Hon''ble High Court vide order dated 16.7.1998 and directed to the defendant to not to dispossess the plaintiff without following the due process of law. As the plaintiff is in possession of the suit land since last more than 20 years, however declaration of title on the basis of adverse possession and permanent injunction may be directed. The defendant denied the plaint averments and also contested the relief of injunction as prayed in the suit. The trial court as well as appellate court negatived the plea of adverse possession in absence of having any cogent material to prove the case as set forth by the plaintiff. The courts below also refused to grant injunction, however, this appeal has been preferred.

Learned senior counsel Shri Bhardwaj has drawn my attention to Ex-P/1 and Ex-P/2 which are orders passed by this Court in M.A. No. 8/91 and F.A. No. 9/93 whereby the defendant was restrained to dispossess the appellant without following the due process of law. However ignoring these orders refusal of the injunction is not permissible on the point of declaration of title. After arguing for sometime, it is fairly conceded by him that in the fact and circumstances of this case the said relief cannot be granted. However, it is urged that on the point of injunction, this appeal may be admitted for final hearing formulating the substantial question of law.

After hearing Shri Bhardwaj and on perusal of record, it is apparent that the land was belong to municipal council whereupon the complex has been developed. In the said sequel of fact if the plaintiff has occupied a shop of council and running a hotel therein, the suit for declaration of title on the basis of adverse possession cannot be decreed. In addition thereto no document has been produced indicating the continuous and peaceful possession hostile to real owner. On the contrary, various litigations were continued wherein the directions were issued to not to dispossess the appellant without following the due process of law. In such circumstances, the finding of fact dismissing the suit seeking declaration of title on the basis of adverse possession do not warrant any interference.

So far as the grant of injunction is concerned, looking to the orders Ex-P/1 and Ex-P/2 passed by this court following direction was issued:-

Accordingly, it is directed that the respondent No. 1 shall not evict the appellant from the present place, except according to procedure established by law and they shall give notice and afford an opportunity of hearing to the appellant. If any adverse order is passed, the same shall not be given effect to for a period of three weeks from the date of its passing and the appellant shall have a right to challenge the same in accordance with law. It is further directed that if any project scheme for allotment of shops newly constructed is in force and if any shop is available, it shall be open to the appellant to make an application for the allotment of newly constructed shops under the said Scheme, which shall be considered in accordance with law.

In view of the aforesaid order passed by this court in the case of plaintiff for the same premises suffice to observe that the defendant can dispossess the plaintiff by following the due process of law. However, the trial court committed error to such extent which is modified while dismissing this appeal.

In view of the foregoing I find that no substantial question of law arises in this appeal for determination by this Court subject to said modification. Accordingly, this appeal is dismissed at motion hearing stage as no substantial question of law arises.