RAJKUMAR SHARMA AND ANOTHER Vs. NAGAR PALIKA NIGAM

JUDGEMENT

(1.) This appeal by plaintiffs is directed against the judgment and decree dated 16/8/2007 in Civil Appeal No.64-A/2006 confirming the judgment and decree dated 19/7/2006 in Civil Suit No.64- A/2006. Plaintiffs' suit for declaration and permanent injunction has been dismissed.

(2.) Facts necessary for disposal of this appeal are in narrow compass. A house situated in Jinsi Nala No.2, Khurjewala Mohalla, Gwalior is of the ownership and possession of plaintiffs. Three shops are constructed therein and there is a Chabutara of 3X33 ft. in front of the house. The aforesaid Chabutara is the suit property in the instant case. It is claimed that the aforesaid house was purchased by the plaintiffs' father on 10/7/1967 and after their father's death, plaintiffs acquired title thereof. The aforesaid suit property was constructed in the year 1972. At earlier point of time having apprehension of the same being demolished by defendant, plaintiffs filed suit for permanent injunction vide civil suit No.43- A/1979. The same was decreed on 24/1/1985. Thereafter, there was no interference or apprehension as regards demolition of the aforesaid Chabutara, however, to the utter surprise of plaintiffs, on 31/12/2004 defendant since again attempted to demolish the same, instant suit was filed for declaration and permanent injunction.

(3.) Defendant filed written statement and denied the plaint allegations. It is inter alia submitted that no permission was accorded by the defendant/Corporation for raising Chabutara. In fact the Chabutara is being removed under anti-encroachment drive initiated by the defendant/Corporation to widen the public road in terms of directions issued by the Writ Court on 5/11/2004 in Writ Petition No.2054/2004 and order dated 5/3/2003 in Writ Petition No.310/1999. With the aforesaid pleadings, defendant prayed for dismissal of the suit.