NAGAR PALIKA Vs. BABU LAL

JUDGEMENT

(1.) This second appeal has been preferred against the judgment and order dated 21.3.1989 passed by Ist Additional District Judge, Ghazipur in Civil Appeal No. 3 of 1987 Sri Babu Lal and another vs. Nagar Palika Ghazipur, whereby the appeal filed by the defendants Babu Lal and another was allowed and the judgment and decree of the Trial Court was set aside and the plaintiff-Nagar Palika's suit for demolition of construction and possession over the disputed land was dismissed. The case of the plaintiff/appellant, in brief, is this that the U.P. Government acquired the suit property in 1896 for the benefit of B.N.W. Railway and the Railway remained in possession of the suit property till 1940. In 1941, it was realised by the Railway authorities as the area mentioned in the schedule were no longer required by the Railway for its purpose. So, with the sanction of the Provincial Government some of the area of these plots were released in favour of Nagar Palika and since then the Nagar Palika is the owner in possession of the said property. The defendants have no title over these plots and they have, without any lease or licence from the plaintiff, raised construction on the land in question. The construction, according to the plaintiff, is liable to be demolished but the defendants have not demolished the construction in spite of the notice from the plaintiff. The plaintiff has given a site plan at the foot of plaint to explain the circumstances of the case. According to the site plan, the defendants' constructions are marked by letters E, F, F1, F4 and the Ahata are marked by letters F1, F2, F3 and F4. According to the plaintiff, these are unauthorized constructions over Patri of the road. The property released by the railway in favour of Nagar Palika in 1940 has been shown in the map and the road had been constructed therein in 30 ft. wide strips. In the north and in the south of the road land were left to be let out to different persons. In the south of the road plots were let out by Municipal Board in favour of the persons. The defendants did not take any lease but have raised constructions.

(2.) The case of the defendants is this that the suit property has never been acquired by the State Government and has never been released by the railway administration in favour of the Municipal Board, but the same was taken by the ancestors of the defendants in 1876-77 through Patta. After taking Patta, kuchcha constructions were raised and after some times pucca constructions were raised after getting the plan sanctioned by the Municipal Board in 1945. Certain objections of estoppel and acquiescence, and limitation etc. have also been raised by the defendants.

(3.) On the basis of the pleadings of the parties the Trial Court framed the following issues: