KU AAMINA SAADAT ALI Vs. MUNICIPAL BOARD BAHRAICH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the appellate court below whereby the suit of the plaintiff was dismissed. Raja Syed Mohd. Saadat All Khan had tiled the suit alleging that he was the Zamindar of Mohal Abu Jafar in the city of Bahraich, that plots Nos. 6454, 6455 and 6456 of the First Settlement of 1857 lay in the said Mohal and were owned and possessed by him and that the Municipal Board, Bahraich, without any right threatened to make certain constructions over the plots in question. Hence the suit was initially filed on 25th October, 1962 for a permanent injunction to restrain the Municipal Board from making any construction on the said plots of land. However, during the pendency of the suit the Municipal Board constructed certain shops over the said land. The plaint was consequently got amended and a relief for delivery of possession by removal of the offending constructions was sought for.

(2.) The suit was contested by the Municipal Board on a variety of grounds. It was alleged, inter alia, by the Municipal Board that the offending constructions did not lie on the plots in question, that the land in suit had been a public street and was managed by the Municipal Board, Behraich, and that the ownership of the road and patri vested in the Municipal Board and it was within its right to make constructions. The trial court on the pleadings of the parties framed a number of issues. It held that the plaintiff was the owner of the plots in suit and the offending constructions lay on the same. It also found that the land in suit is a public road which vests in the Municipal Board, but as the land was not being used as public street but was used for other purposes, namely, for raising constructions thereon, the property in the land revested in the Zamindar, namely, the plaintiff. It, therefore, decreed the suit against the Municipal Board. An appeal was thereupon preferred by the Municipal Board in the court of the District Judge, Behraich. That appeal was ultimately heard and decided by the learned Civil Judge, Bahraich. The appeal was allowed and the suit was dismissed by the appellate court below. Aggrieved, the plaintiff filed this second appeal. During the pendency of the appeal Raja Syed Mohd. Saadat Ali Khan died and Kumari Aamina Saadat AH was substituted in his place as appellant.

(3.) On 13th February, 1978, this appeal was placed before me for hearing. When I heard this appeal, I remitted the following issue to the appellate court below for its findings:- "Whether the constructions in dispute lie on any plot of Mohal Abu Zafar? If so, its effect?" The appellate court below has remitted its finding dated 31st July, 1978 as below:-