VED PRAKASHRASTOGI Vs. NAGAR PALIKA BUDAUN

JUDGEMENT

(1.) THIS is a plaintiffs second appeal. The plaintiff filed a suit for permanent injunction alleging that he was the owner and in possession of plot Nos. 485 and 486, portions of which were in the municipal limits. It was alleged that one raghunath Sahai had filed Original Suit No. 113 of 1978 against the Municipal Board and the plaintiff with regard to the same plots in question and, in this suit, an issue with regard to the ownership of the plots was framed. This suit was dismissed against sri Raghunath Sahai and the Court held that the plaintiff was the owner arid in possession of plot Nos. 485 and 486. It was also alleged that the appeal filed by Sri raghunath Sahai was also dismissed. The plaintiff, therefore, contended that apart from being in possession for more than 12 years, a judicial pronouncement had also been given in his favour by a Court holding him to be the owner and in possession of the plots in question. The plaintiff alleged that in a portion of plot No. 485, the defendant - Municipal Board had started throwing garbage and was trying to dispossess the plaintiff. Consequently, the present suit was filed in which the plaintiff prayed for the following reliefs:

(2.) THE defendants contested the suit and filed his written statement contending that the defendants are the owners and in possession of the plots in question by adverse means. The defendants alleged that they had perfected their title by being in adverse possession for more than 12 years. The defendants further alleged that they had been throwing garbage in the said plot for several years and that the plaintiff was never in possession of the said plots. The defendant further alleged that Suit No. 113 of 1978 filed by Sri Raghunath Sahai, was a collusive suit, and in any case, the decision in the said suit had no bearing with the rights of the answering defendants nor was it binding upon them. The defendants also alleged that the suit was not maintainable in a Civil court and that the plaintiff should have filed the suit before the Revenue Court.

(3.) THE trial Court, after framing as many as nine issues and after considering the evidence brought on the record, decreed the suit. The trial Court held that the plaintiff was the owner and in possession of the plots in question. The trial Court further found that the plaintiff did not make any attempt to dig any foundation in July 1983. the trial court further found that the judgment in original Suit No. 113 of 1978 was decided inter se between the parties and, therefore, was binding upon them. The trial Court further found that the defendants did not acquire any right over the property by way of adverse possession and that the suit was not barred under Section 326 of the Municipalities Act for want of previous notice and that the suit was maintainable before the civil Court and that the plaintiff was not required to seek a suit for declaration before the revenue Court. It may also be stated here that before the trial Court, the plaintiff had abandoned relief No. (c) as claimed by him in the plaint, namely, that if the plaintiff was found to be out of possession then the possession may be awarded by the Court after ejecting the defendants.