MUNICIPAL COUNCIL Vs. CHAND KHAN

JUDGEMENT

(1.) The appeal has been heard on the following two substantial questions of law: -

(2.) Short facts giving rise to the present appeal are that the plaintiff/respondent instituted a suit merely for perpetual injunction with allegations that disputed piece of land ad-measuring 108 ft. 9 inch East-West x 24 ft 6 inch North-South situated in city of Jaora, District Ratlam is owned and possessed by the plaintiff. It was earlier owned and possessed by Gulab Khan s/o Noor Khan. There was a house constructed on a part of the disputed land, which was purchased by Gulab Khan in the year 1904 from Malooki wd/o Khushi Khan. After the death of Gulab Khan, his son Nahar Khan became the owner of the disputed property, which with the passage of time, was in ruined condition. On account of absence of the owner, adjacent plot holders opened their doors in the disputed property. Nahar Khan had no issue. Therefore, on 14.01.1985, he orally gifted the disputed property to the plaintiff, which was accepted by the latter. Possession was also delivered simultaneously. Later on, a memorandum of oral gift (HIBA) was also executed by Nahar Khan on the same day. Municipal Council, Jaora on 15.01.1985 started constructing a Kharanja on the disputed property, which was opposed by the plaintiff. Hence, the suit for permanent injunction, restraining the defendant/appellant from making construction of Kharanja on the disputed piece of land and further, from interfering into plaintiff's possession.

(3.) Defendant/appellant submitted his written statement, refuting thereby the claim of the plaintiff. It is specifically stated in the written statement that Gulab Khan had no right, title or interest in the disputed property instead the same is, in fact, a municipal lane and not personal property of any individual. This being so, Kharanja was rightly constructed in the municipal land and drains were already constructed for the said lane by the Municipal Council. This apart, it is clearly averred in the written statement that the disputed property as shown has been municipal lane in the City Plan of the year 1959. Plaintiff did not oppose constructions of drains on the said municipal lane as the same has been municipal land. It being a municipal land, residents of the area have opened their doors in the disputed property and they have been using the same for last more than 50 years. Accordingly, the suit is liable to dismissal.