JANMJAY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is the Plaintiff's second appeal against the decree and judgment dated 9-5-1973 of the Second Civil Judge, Meerut at Ghaziabad, reversing the decree of the trial court, by which the Plaintiff's suit was decreed.

(2.) The suit was filed by the Plaintiff for permanent injunction restraining the Defendant Nos. 1 and 2 from interfering in the possession of Plaintiff and Defendant No. 3 over the Gher in suit and also restraining them from fractioning the Gher in suit to any body. It was alleged in the plaint that the land in suit was allotted by Land Management Committee in favour of Plaintiff and Defendant No. 3 on 13-5-1962. The Plaintiff and the Defendant No. 3 constructed Kothas over there and a boundary wall, which fell down in rains and Plaintiff and the Defendant No. 3 are using the land in suit as their Gher. It has been alleged that the Pradhan, due to enmity, moved an application to the Court of Tehsildar on 5-10-1964 for re-auction of the disputed land. Tehsildar submitted his wrong report to S.D.M. on 2-3-1965 for re-auction of the disputed land and S.D.M. also wrongly accepted his report on 3-3-65 against the Plaintiff and Defendant No. 3 and now the Pradhan is prepared to re-auction the land in dispute, without any right. A notice under Section 80 Code of Civil Procedure was given to U.P. State, which was served on 27-12-1966, but still Defendant Nos. 1 and 2 are not to resist from re-auctioning the disputed land. Hence the present suit.

(3.) The suit was contested by the Defendants on the grounds that the suit is barred by Section 80 Code of Civil Procedure They alleged that the Plaintiff did not raise construction over the land within two years as required by law and hence the order of the Sub-Divisional Magistrate for re-auctioning the land in suit is legal. They also alleged that the suit is barred under Section 106 Panchayat Raj Act (hereinafter referred to as Act).