STATE OF UTTAR PRADESH Vs. ATA MOHD

JUDGEMENT

(1.) This appeal is preferred by the State of Uttar Pradesh by Certificate granted by the High Court of judicature at Allahabad on 18-5-1980 ( ) in Supreme Court Appeal No. 105 of 1966 against its judgment and decree dated 25th August, 1965 passed by it in first appeal No. 27 1951, dismissing the suit filed by the State of Uttar Pradesh.

(2.) The State of Uttar Pradesh filed suit No. 109 of 1949 in the Court of Civil Judge, Gorakhpur against the respondent Ata Mohd. for a mandatory injunction directing the respondent to remove his material and construction and to clear the land and the plot No. 227 in Mohalla Purdilpur in the City of Gorakhpur and for a decree for possession over the land measuring 45' x 20'. The Civil Judge, Gorakhpur dismissed the suit by judgment and decree dated 3-10-1950. The plaintiff preferred first appeal No. 27 of 1951 to the High Court of Allahabad. The appeal was heard by a Bench of two Judges but on a difference of opinion, the matter was referred to the third Judge. In accordance with the view of the majority, the appeal preferred by the plaintiff, was dismissed by its judgment dated 25th August, 1965. On a certificate granted by the High Court under Art. 135 of the Constitution and also Article 133 (1) (c) of the Constitution, the present appeal in this Court was filed by the plaintiff/appellant.

(3.) The facts of the case are briefly as follows:The plot in dispute is plot No. 227 measuring 45' x 20' adjoining Patri along with the road running from Golgarh to Alinagar in Gorakhpur. The respondent Ata Mohd. applied to the Municipal Board, Gorakhpur, for grant to him of a lease in the year 1939. The Board declined to grant him lease.. The respondent again applied on 10-10-1945. The Municipal Board passed a resolution on 24-11-1945, granting to the respondent the lease and forwarded the resolution to the District Magistrate to accord his approval who on 8-3-1946 approved the resolution of the Municipality. On 12-4-1946, the respondent executed a 'Kabuliyat' in favour of the Municipal Board, Gorakhpur. On 23rd April, 1946, the respondent applied for permission to construct a house and submitted a plan for sanction. The plan was sanctioned by the Municipality on 8th May, 1946.