AMAR KUMAR Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) This appeal has been preferred against the order dated 17.2.1993 passed by the learned Addl. District Judge, Hindaun City, in Civil Regular Appeal No.20/92 (70/94) whereby the learned lower appellate Court framed the additional issue and remanded the case back to the learned trial Court under Order 41, Rule 23, CPC seeking decision on the additional issue framed and calling the finding before it.

(2.) The facts in the brief are that the plaintiff-appellants filed a suit for injunction against the defendant-respondent restraining the respondent-Municipal Council, Hinduan City, from demolishing the shop constructed by the plaintiff-appellants in the year 1956 on the basis of the Patta granted to the plaintiff-appellants on 4.12.1956 as well as on the basis of the permission granted by the respondent-Municipal Council.

(3.) The submission of the learned counsel for the plaintiff-appellants is that the learned trial Court had framed the issue No.1 which was comprehensive in nature in which the burden had been placed upon the defendant-respondent to show that the land in question on which the shop had been constructed was a 'Sivay Chaq' land belonging to the State Government and the Municipal Council contrary to law had taken the "Nazrana" from the plaintiff-appellants and given permission as well as the patta to them. The other submission of the learned counsel for the appellants is that since, it was the plea of the Municipal Council that the land was a sivay change land and that the permission had been granted contrary to law while admitting that the Municipal Council had taken the Nazarana and issued a patta and granted permission but the same should not have been granted contrary to the statutory provisions, in this view of the matter when the grant of permission, taking of nazrana and issuance of patta by the respondent-Municipal Council defendant is not in dispute, the burden was rightly placed upon the defendant-Municipal Council to prove its case and that the learned lower appellate Court by taking erroneous assumption framed the additional issue that the shops had been constructed on the land on which previously the predecessors of the plaintiff-appellants were having their kham houses and on this basis the patta was issued by the Municipal Council and place the burden upon the plaintiff-appellants.