DEVENDRA KUMAR SHARMA Vs. ADHISHASHI ADH NAGAR PALIKA

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree dated 3.10.2009 passed by the Additional District Judge (Fast Track) Sawai Madhopur in Civil Appeal No.40/2009 whereby the judgment and decree dated 29.5.2006 passed by the Civil Judge (Junior Division), Sawai Madhopur in Civil Suit No.66/2001 has been up-held.

(2.) BRIEFLY stated, the facts for the disposal of the present second appeal are that the plaintiff-appellant filed a suit for permanent injunction before the Civil Judge (Junior Division) Sawai Madhopur wherein it was averred that he is having a cabin of the size 4'x5' near Railway Station, Bajaria, Sawai Madhopur. It was also alleged in the suit that the plaintiff is doing his business in the shop for last 15 years and is also depositing license-fee. It was also stated that he took loan for the purpose of business, therefore, he has all rights to continue in the suit premises without any hindrance of respondent. It is also alleged that the employees of the defendant-respondent came on the cabin on 5.5.2001 and started lifting the cabin, therefore, it became essential to file the suit. The suit being of urgent nature, notice was not served upon the respondent and permission was sought from the court to file the suit. A prayer was made to restrain the respondent not to remove the cabin and plaintiff be allowed to continue doing business. The defendant denied the allegations made in the suit and stated that encroachment was made by the plaintiff-appellant. It was also stated in the reply that the Municipal Council is competent to remove encroachment made by anybody and the suit was not of permanent nature, notice under section 271 of the Municipalities Act was essential which was not given, therefore, the suit was not maintainable. The learned trial court on the basis of pleadings of the parties framed as many as four issues including relief. Issue no.1 was in relation to issuance of permanent injunction in favour of the plaintiff and further to restrain the respondent not to create any hindrance in the use of the shop. The learned trial court on the basis of evidence adduced by both sides, admissions made by the plaintiff in relation to encroachment and further finding that there was no title vested in favour of the appellant, decided issue no.1 against the plaintiff-appellant. The trial court further decided issue nos. 2 and 3 against the plaintiff-appellant on the basis of findings recorded on issue nos.1 and 2 vide its judgment and decree dated 29.5.2006. On appeal being preferred, the learned appellate court concurred with the findings recorded by the trial court and dismissed the appeal vide its judgment and decree dated 3.10.2009. Hence, the present second appeal has been filed.