URBAN IMPROVEMENT TRUST, ALWAR Vs. GORDHANI & ANR

JUDGEMENT

(1.) The present second appeal has been filed by the UIT, Alwar through its Secretary challenging the judgment and decree dated 14.5.04 passed by the Addl. District Judge No.1, Alwar (hereinafter referred to as 'the appellate court')in Civil Regular Appeal No. 93/03, whereby the appellate court has confirmed the judgment and decree dated 9.9.03 passed by the Addl. Civil Judge (JD) No.1, Alwar (hereinafter referred to as 'the trial court') in Civil Suit No. 191/95, however has set aside the findings recorded by the trial court against the respondents-plaintiffs in respect of issue Nos. 2 and 3.

(2.) The short facts giving rise to the present appeal are that respondents-plaintiffs had filed the suit against the appellant-defendant alleging interalia that the disputed property was purchased by one Shri Onkar Prasad on 2.2.1956 and a shop was constructed thereon for running the business in the name and style Kapoor Coal Company. It was further case of the respondents-plaintiffs that after the death of said Onkar Prasad the plaintiffs were in possession of the said shop and on 17.4.80, the plaintiffs had moved an application seeking permission of the appellant-defendant for additional construction, however no decision was taken by the appellant-defendant. The respondents-plaintiffs, therefore, had started construction treating the permission as deemed to have been granted in view of Section 73(8) of the UIT Act. Since the appellant-defendant thereafter was giving threats to stop the construction and demolish the same, the suit was filed. The appellant-defendant had resisted the suit by filing the written statement contending interalia that the disputed land over which the illegal construction was being carried out, did not belong to the respondents-plaintiffs and the plaintiffs did not have any right to put up construction. The trial court framed the following issues from the pleadings of the parties.

(3.) After appreciating the evidence on the record, the trial court decreed the suit of the plaintiffs-respondents, however recorded the findings on issue Nos. 2 and 3 against the plaintiffs. It was decreed by the trial court interalia that the appellant-defendant shall not remove or demolish the construction put up by the respondents-plaintiffs without following due process of law. It is pertinent to note that no appeal was preferred by the present appellant-defendant before the appellate court, however the respondents-plaintiffs being aggrieved by the findings recorded against them in respect of Issue Nos. 2 and 3 had preferred the appeal before the appellate court, which has been partly allowed by the appellate court, maintaining the decree passed by the trial court and setting aside the findings recorded on Issue Nos. 2 and 3. Being aggrieved by the said judgment and decree passed by the appellate court, the present appeal has been filed by the appellant.