MOHAMMAD AMIN AND OTHERS Vs. NAGAR MAHAPALIKA, ALLAHABAD

JUDGEMENT

(1.) A suit was filed by one Mohammad Amin, who is the plaintiff appellant No. 1 in this appeal for an in junction restraining the Nagar Mahapalika Allahabad, from interfering with Mohammad Amins possession over the Gumti and from dismantling the same. The Nagar Mahapalika was made defendant No. 1 in the suit and Waqf Tazia Kalan, Allahabad was made as defendant No. 2 in the suit. In the present appeal, Waqf Tazia Kalan Ailahabad, who was defendant No. 2 in the suit, has also been made as appellant No. 2.

(2.) The case set up by Mohammad Amin was that he is the owner of shop (Gumti) in suit, situate in Mohalla Johnstonganj, Allahabad. The land over which the said gumti stands is owned by the Waqf Tazia Kalan, Allahabad, and the Waqf Tazia Kalan Allahabad has let out the gomti in dispute to Mohammad Amin. It was alleged that this shop had been let out earlier also by the Waqf Tazia Kalan to various tenants since long and on 2nd Jan., 1963, the tenancy was obtained by Mohammad Amin from the Waqf as running concern of machines from Tahauvar Hussain no Rs. 1,400. The Nagar Mahapalika, Allahabad, without any notice, sent its employees on 16th Oct., D65, to demolish the shop, and consequently, the present suit was filed for injunction restraining the Nagar Mahapalika, Allahabad, from interfering with the plaintiff appellants possession over the land in dispute.

(3.) The Nagar Mahapalika, Allahabad, contested the suit on the allegations that the plaintiffs is not the owner of the shop in dispute and that the land is not owned by the Tazia Kalan, that it formed part of the land over which the public in general have a right of passage and access and have been passing all along since scores of years and the said street vests in and belongs to the Nagar Mahapalika, Allahabad. It was further alleged that the land has been levelled, channelled and repaired by the Nagar Mahapalika out of its funds and it is lighted by the Nagar Mahapalika and the lane as we 1 as the drain have been constructed by the Nagar Manapalika. It is also being cleaned by the Nagar Mahapalika. The shop in question is an encroachment on the said public street made recently and, as such, no injunction can be issued against the Nagar Mahapalika. So far as the Waqf Tazia Kalan is concerned, it admitted the allegations made in the plaintiff and admitted that the Waqf is the owner of the land in dispute of which the plaintiff appellant is the tenant and the Nagar Mahapalika, Allahabad, had nothing to do with land adjacent to the shop in dispute.