GULAM MOHD. QURESHI Vs. NAGAR NIGAM JAIPUR

JUDGEMENT

(1.) This second appeal is directed against the judgment & decree of the Additional District Judge No. 5, Jaipur City Jaipur confirming the judgment & decree passed by the Additional Civil Judge (JD) No. 4, Jaipur City who dismissed the plaintiff-appellant's suit for permanent injunction.

(2.) The salient facts giving rise to this second appeal, briefly stated, are that the plaintiff appellant filed a civil suit for permanent injunction averring therein inter-alia that he had been residing at the suit plot measuring 27.6. ft. x 31 ft. situated in Kachhi Basti Sitarampura in Survey No. 4526/71, Nehru Nagar Jaipur for more than 30 years without any interruption and to thereby had acquired ownership rights by adverse possession. The State of Rajasthan made survey of Kachhi Basti for regularisation, wherein survey No. 4526 was given to the plaintiff, but on 18.5.91 a notice Under sections 32 and 33 of the Jaipur Development Act, 1982 (for short "the JDA Act") was issued by the Jaipur Development Authority (for brevity "JDA") alleging therein that the constructions were made unauthorisedly by the plaintiff without seeking prior permission of the Corporation and hence the same could not be regularised and were to be demolished. Against the said notice, an appeal was also filed before the JDA-Tribunal and the validity of the said notice was upheld. At the relevant time the aforesaid Scheme in which the appellant's plot was located was transferred from JDA to Jaipur Nagar Nigam on 19.6.1995. Thereafter, the enforcement officers of the defendant Corporation came for demolishing the construction over the suit-plot as such, the suit claiming the relief of permanent injunction was filed. Consequently, the appellant filed the suit restraining JDA from carrying out demolition of the construction raised over the pot in question by him which was dismissed by the trial Court giving rise earlier to an appeal before the First Appellate Court which affirmed the findings of the trial court and thereafter he has come up before this Court by way of present second or issuance of permanent injunction for restraining the defendant Corporation from demolishing the construction and interfering with plaintiff's possession over the suit land.

(3.) The defendant-Jaipur Nagar Nigam for short "the Corporation" in it's written statement pleaded that the possession of the plaintiff over the suit land was as a trespasser while its owenership vested in the Jaipur Development Authority. The defendant-Corporation denied the adverse possession of the plaintiff over the suit plot for more than 30 years because the encroachment by the plaintiff was new one and the plaintiff had been dispossessed from the suit plot from time to time on many occasions in the past. Hence, plea of adverse possession or ownership rights claimed thereon by the plaintiff in absence of any evidence of lawful title could not be sustained. The defendant denied any construction raised over the plot by the plaintiff in the year 1971. The Corporation defendant pleaded that even the JDA had also not accepted plaintiff's ownership over the suit plot and the defendant had lawful right to remove encroachment and further that since the suit being for permanent injunction was not maintainable in the absence of as suit for declaration.