SUDHIR KUMAR Vs. NAGAR PALIKA PARISHAD KHATIMA

JUDGEMENT

(1.) The appellant herein is a plaintiff in Civil Suit No.126 of 2011, Sudhir Kumar vs. Nagar Palika Parishad and another, which he has instituted before the court of Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Khatima on 31.01.2018 praying for the following reliefs:-

(2.) As per plaint averments, few facts, which are not disputed is that the plaintiff/appellant and his brothers have alleged to be the owner in possession of the property lying in khasra no.107 having a total area of 4.111 hectares, more particularly described in plaint map by figure A B C D, out of which the plaintiff/appellant is owner of 107A/1, lying in Ward No.6, over which according to the plaintiff/appellant's averments he has constructed a Dharmshala and three other independent residential accommodation. These are not the property in dispute because its possession is enjoyed independently by the petitioner as well as his other brothers. It is further an admitted case of plaintiff/appellant that beyond the boundary of the said khasra number 107, there lies, khasra no.106 in SouthEast directions which has been recorded in the revenue records as to be 'Khanti'. The said property, Khasra No.106 has been described in the plaint map by figure G.A.D.H. It is further not disputed that beyond the area of Khasra No.106, which is recorded as in the revenue record as Khanti, there is a road lying in khasra no.105 called as Railway Road, which has been described in the plaint map by the figure G.H.J I. The case of the plaintiff/appellant was that the Khanti, which also constitutes to be a part of the road and as per the description given therein, it would constitute to be a property lying under Section 2 of Sub Section (23) of the U.P. Municipalities Act, 1916; Section 2 of Sub Section (23) of the U.P. Municipalities Act, 1916 describes the streets, which is quoted hereunder:- "2(23) "Street" means any road, bridge, footway, lane, square, count, alley or passage which the public or any portion of the public, has right to pass along and includes, on either side, the drain or gutters and the land upto the defined boundary of any abutting property, notwithstanding the projection over such land of any verandah or other superstructure;"

(3.) There is nothing on record by way of document to show, except the assertions made by the counsel for the plaintiff/appellant that the property lying in khasra no.106, which has been shown to be Khanti, will be falling within the purview of definition of street as given under Sub Section (23) of Section 2 of the U.P. Municipalities Act, 1916 as described by figure G A D H of Khasra no.106, where there lies a road which had been accordingly recorded in 1367 fasli, having a width of about 30 feet and which is being still used as a public road. The grievance of the plaintiff/appellant herein in the suit is that the so called property lying in khasra no.106, which has been recorded initially as Khanti was levelled by the Nagar Palika as back as in the year 1989 after leveling the same, the same was brought in the same level to the public Railway road lying in khasra no.105 and thereafter its leveling according to the plaintiff/appellant it constituted to be the part of the road and thus, according to his description made in the plaint, the width of the road ultimately changed to 50 feet after including the width of Khanti. It is also yet again not disputed and rather has been pleaded particularly in para 11 of the plaint that the said khasra no.106, when it was leveled by the Nagar Palika in 1989 it was given shape of park and boundaries of park was constructed by them, the Nagar Palika had thereafter as back as in 2003, started fencing of the said property and described it as to be a public park to be utilized as a park open for the public.