PARAS RAM Vs. MUNICIPAL BOARD ALIGARH

JUDGEMENT

(1.) This second appeal is by the defendants who are the sons of one Behari Lal. It arises out of a suit brought by the Municipal Board of Aligarh for the removal of certain encroachments alleged to have been made by the defendants over rasta plot bearing No. 648 situate in mohalla Nuner Darwaza, adjacent to the west of which is defendant's bagichi situate in plot No. 647. The plaintiff came upon the allegation that in December, 1945, the defendants broke a portion of the eastern compound wall of their bagichi and made an encroachment over the rasta land delienated in red in the map annexed to the plaint.

(2.) The defendant resisted the suit on the ground that no encroachment had been made over the rasta land and that the portion of the land in dispute forms part of their bagichi which they had obtained on lease from one Raja Prem Pratap Singh. The trial Court issued a commission to one Sri Bankey Lal, a practising lawyer, to find out upon inspection and measurement Whether an encroachment exists. Sri Bankey Lal, it may be stated, happened also to be a Municipal Commissioner, and so was the defendant. Sri. Bankey Lal inspected the place in the presence of the parties and their counsel, took measurements of the locality, prepared a site-plan on scale and also a report wherein he indicated that the land covered by the defendants patta was complete by itself and exclusive of the disputed piece of land; that the disputed piece of land formed part of a rasta; that an encroachment had been made over that piece of land by the defendants who had broken up part of their eastern compound wall. Objection was taken against the report and the map prepared by the Commissioner and one of the grounds was that the Commissioner appointed in the case was a Municipal Commissioner and therefore he was interested in the matter and was not fit to act as Commissioner for taking measurements. The objections were overruled. The trial Court also relied upon the other oral and documentary evidence that was produced in the case and came to the conclusion that an encroachment has been made over rasta plot No. 648 and the trial Court accordingly decreed the suit.

(3.) The defendants preferred an appeal; but it was dismissed by the lower appellate Court. Against the judgment and decree of the lower appellate Court, this second appeal was preferred by the defendants. It came up before a learned single Judge of this Court. The point was raised before him that the appointment of the Commissioner in the case amounted to making the Municipal Board a Judge in its own cause & consequently the report & map prepared by the Commissioner were a nullity. The learned single Judge observed that the principle cannot be stretched to this extent that a Municipal Commissioner or a member of a Corporation who is also a vakil cannot be appointed a Commissioner, even though there was no objection at the time of the appointment The learned single Judge, however, felt that as the point raised was one of importance, the matter may be decided by, a Division, Bench and that is how the matter has come up before us.