OM PRAKASH GUPTA Vs. HAWA BI

JUDGEMENT

(1.) The appellant/Defendant No.2 has preferred this First Appeal under Sec. 96 of the Code of Civil Procedure, 1908, (for short 'the CPC'), challenging the judgment and decree dtd. 23/2/2018 passed by the Additional Judge to the Court of Upper District Judge, Katghora, Distt. Korba in Civil Suit No.02A/2010, whereby, the suit filed by the plaintiff/respondent No.1 for declaration of title and permanent injunction with regard to the suit property (shop No.16), constructed by respondent No.2/Nagar Panchayat Katghora, has been partially decreed by the trial Court, wherein the learned trial Court declined to declare title of the plaintiff over the suit property, but granted injunction in her favour that, she may not be dispossessed from the suit property except as per the terms of allotment and due process of law.

(2.) Facts of the case, in nutshell, are that plaintiff Hawa Bi filed civil suit stating inter alia that she was carrying hotel business at Bus stand, Katghora, 30-35 years prior to filing of the instant suit. In the year 1995-96, by demolishing her hotel and shops of other persons, Nagar Panchayat, Katghora constructed passengers lounge and shopping complex at Bus stand, Katghora. Under the assurance given by defendant No.1 that, shops will be given to the persons, who are carrying business at Bus stand, the plaintiff along with other persons had handed over their shops for aforesaid construction. After completion of shopping complex, shop No.16, area 17 x12 =204 sq. ft., was allotted to the plaintiff on construction cost of Rs.85,000.00 and monthly rent was fixed as Rs.500.00. Thereafter, possession of shop No.16 (henceforth called 'suit property') was given to the plaintiff. It is further pleaded that defendant No.1 has executed lease deed in favour of defendant No.2 in respect of suit property whereas, the plaintiff had neither sold nor alienated the suit property to defendant No.2. Aforesaid lease deed has been executed without informing the plaintiff or without her consent, therefore, defendant No.2 has no right over the suit property, which was allotted to the plaintiff under the rehabilitation policy. Earlier the plaintiff had filed civil suit, which was dismissed upto the High Court as it was filed without following the procedure of prior notice to the defendants. Thereafter, the plaintiff filed instant civil suit as defendants are trying to dispossess her from the suit property, therefore, suit was filed by the plaintiff seeking relief of declaration of title over the suit property and also for grant of permanent injunction against the defendant in the enjoyment of peaceful possession of the suit property.

(3.) The defendant No.1/respondent No.2 herein filed written statement stating therein that, since the shopping complex in which the suit property, i.e. shop No.16 situates, has been constructed by Nagar Panchayat Katghora, therefore, it is wrong to say that the plaintiff is having title over the suit property. It is further pleaded that, on being application and affidavit given by the plaintiff, suit property was allotted to defendant No.2 with the consent of plaintiff, as she had stated in the application and affidavit that due to financial constrain, she is unable to run shop No.16 and also unable to follow the terms of allotment and due to her financial constrains, she has received Rs.85,000.00 from defendant No.2, hence, disputed property may be transferred in his name. Under such application and affidavit given by the plaintiff, lease deed with regard to suit property/shop No.16 was executed in favour of defendant No.2-Omprakash Gupta on 23/10/2002 and thereafter, possession of the shop was handed over to him. It is further stated that monthly rent of the suit property is being paid by defendant No.2 and electricity connection has also been established in the suit property in his name. Since the suit property has been allotted to defendant No.2, therefore, notice had been issued to the plaintiff to vacate the suit property, but she has not vacated it.