BABU BALMAKUND GUPTA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is a first appeal from the Court of the Subordinate Judge of Bareilly in which a preliminary objection has been taken by the respondent to the valuation of the appeal by the appellant. In order to decide this preliminary objection it will be necessary to refer to the facts. The suit was brought by the Secretary of State complaining that the defendants motorgarage and showroom situated in a busy thoroughfare of Bareilly city encroached upon Government land and the Secretary of State sought on that account an order upon the defendant, in effect, to pull down that part of it which trespassed on Government property. In addition he claimed damages. It is not necessary for the present appeal to go through all the complicated facts in great detail. It is sufficient to tell the story in. outline only. The defendant in 1923 or 1924 was minded to build this motor garage and showroom and for that purpose he took on lease a piece of land. Having taken that piece of land, he started making preparations to build by laying foundation and digging drains and so forth. It was then found, or claimed, by the Municipal Board of Bareilly that part of the site upon which he proposed to build was public land bordering on the road. According to the Municipal Board, part of the building which the defendant proposed to put up actually stood upon this public land, while a certain further strip of land claimed by the Board would be rendered virtually useless because of the building. There then ensued a long period of what, for want of a better term, I will describe as negotiations between the defendant and the Board.

(2.) The Board maintained that the defendant was trespassing on their property, while the defendant took the line of negotiating with the Board for a lease of so much of the ground as the Board said belonged to them. But, in the meantime, the defendant went on putting up his building and it was completed at some date which I cannot fix precisely, but which was not very long after 1924. This led to a great deal of unpleasantness and the Board for long time adopted the attitude that, if the defendant chose to act in defiance of the Board, there was nothing that the Board could do but to demand that he pulled the building down altogether. For a long time they persisted in that attitude and made repeated claims on the defendant under Act 2 of 1916 to demolish the building. Eventually, however, owing to the intervention of the chairman of the Municipal Board, some sort of arrangement was come to between the defendant and the Board under which the defendant paid to the Board a thousand rupees and it was proposed that a lease should be granted to him of a sufficient part of the land in question to enable him to maintain the building. The matter might have ended happily at that point had it not been for the intervention of the Commissioner of the Eohilkhand Division. That; officer, learning that a thousand rupees had; been received by the Municipal Board, pure forward a claim that the land was Nazul land, that in consequence the thousand rupees which had been paid in respect of ifr ought to be paid to Government and not to the Municipal Board. This was countered by the Municipal Board by alleging that the thousand rupees was not received by them in respect of the price of the land at all, but was merely a consideration for their having refrained from prosecuting the defendant under Act 2 of 1916. I am not concerned at this stage with the rights and wrongs of those points of view, except to notice that this argument between the Board and the Commissioner occupied several further years.

(3.) Meanwhile, the defendant having built his building some time shortly after 1924 has proceeded to carry on business there since-then. It was not until 17th September 1934 that the Secretary of State took the step of bringing this suit against the defendant eject him from that strip of land which it had been contended first by the Municipal Board and later by the Secretary of State, had been encroached upon by the building he put up in 1924. It should perhaps be explained that the strip of land in dispute forms the site of the whole of the front of the defendant's motorgarage and showroom including its portico, embraoing altogether a frontage of about 125 feet. As has been said before, the defendant's premises are in a busy thoroughfare of Bareilly and it is obvious from the plans that it constitutes a considerable commercial building.