STATE OF U P Vs. UMA SHANKAR PARASHAR

JUDGEMENT

(1.) ADMIT. Issue notice. The plaintiff respondent no. 1 is represented by Sri J.J. Munir, the plaintiff respondent no. 5 is represented by Sri Shiv Nath Singh, the plaintiff respondent no. 7 is represented by Sri Prakash Padia by caveat. The defendant respondent no. 8 is represented by Sri Ram Kaushik. The substantial questions of law that arises for decision in this second appeal are:- (1) Whether, in the absence of evidence and in view of the provisions contained under Section 2(2) of the U.P.Z.A. & L.R. Act as well as in view of the notification dated 1.9.1969 the land in question will be treated to have vested in the State Government from the date of notification i.e.1.7.1952? (2) Whether, the suit was not maintainable under Order 1 Rule 8 C.P.C. ? (3) Whether, the plaint was to be rejected under Order 7 Rule 11 C.P.C. for want of cause of action and for want of payment of sufficient court fees? (4) Whether suit was barred by provision of Section 38 and 41 of the Specific Relief Act? SA No. 424/09 19.5.09 Pravin Hon'ble Sanjay Misra,J. Sri V.B.Upadhaya learned senior counsel assisted by Sri D.K. Pandey learned Standing counsel has submitted that the plaintiff respondent have filed a suit for permanent prohibitory injunction against the defendants with respect to the land in suit. They had also prayed for relief of declaration that the defendants are not owners of the land in question. According to him when the land came into the ownership of the plaintiffs by virtue of the sale deeds executed after the enforcement of U.P.Z.A. & L.R. Act and they were granted exemption by the notification of 1949 for the purpose of construction of housing colonies in public interest, the constructions having not been made in view of the notification of 1952 read with the notification of 1969 and the amendment in the Act in the year 1978 the exemption stood withdrawn and the land vested in the State and consequently upon the Nagar Nigam. He therefore states that the finding of the courts below ignoring the aforesaid legal provisions are liable to be set aside. Dr. R.G. Padia learned senior counsel assisted by Sri Prakash Padia, Sri Shiv Nath Singh and Sri J.J. Munir appearing for the respondents have stated that there is a clear finding of fact recorded by both the courts below that the land in question was transferred by the erstwhile Zamindars prior to the enforcement U.P.Z.A. & L.R. Act and is has also recorded that the plots have been sold and constructions have been raised in several of such plots. They state that in view of the transfer of the land from the erstwhile Zamindars prior to the enforcement of U.P.Z.A. & L.R issue of exemption argued on behalf of the defendant appellants is not a question involved in the present second appeal. In view of the aforesaid circumstances it is provided that in so far as the constructions of the plaintiffs 1 to 7 over the plots to which they claim title are concerned the appellant shall not disturb the same in any manner whatsoever until further orders of this court.