SPECIAL OFFICER OF HAZARIBAGH MUNICIPALITY Vs. VIJAY MAHAJAN

JUDGEMENT

(1.) THIS appeal has been preferred by the defendant -appellant against the judgment and decree of affirmance passed by the 2nd Additional District Judge Hazaribagh in Title Appeal No. 59/96 upholding the judgment and decree of Munsif, Hazaribagh in Title Suit No. 96/95 by which the suit filed by the plaintlff -respondent -respondcnt was decreed. The plaintiff had filed the said suit praying relief for declaration that he is a rightful lessee of the defendant in respect of the suit land and for confirmation of his possession and also for permanent injunction restraining the defendant not to demolish the construction already made thereon. The plaintiffs case was that the suit property was settled with his ancestors, namely, Gajadharlal Sao under Patta dated 4.2.1931 from the Hazaribagh Municipality measuring an area of 1 Khata 5 Dhurs and 6 Dhurkis in Plot No. 720. The said Gajadharlal Sao thereafter constructed a double storied house after getting his building plan duly sanctioned by the Municipality Subsequently the plaintiff father got the said property in a family partition, After the death of his father in the year 1962, the plaintiff has been exercising the right, title and possession over the same. Further case of the plaintiff was that his father was a social worker. He had allowed to construct a well on 9" diameter over the said land. The half of the well was covered by the plaintiff lather by putting a slab. The plaintiff had been paying rent and taxes including the holding taxes to the Municipality. Subsequently there was a dispute regarding the use of the well.

(2.) THE municipal authority then made inquiry and found the water of the well not fit for human consumption and. therefore, a plan was chalked out for sinking a tube well, one close urinal and water tank considering the need of the people of the locality. Pursuant to the same the plaintiff entered into an agreement with the defendant and the lease deed was executed on 2.12.94 by the defendant in favour of the plaintiff which was to expire by 30.11.2024 According to the terms of the lease the portion of the land over which the well was situated was settled with the plaintiff along with the certain dispute. There was further stipulation that the plaintiffs will close the well at his cost and submerse a boring set with pumps and water tank and also construct an urinal. For the purpose the plaintiff also deposited Rs. 76.700.00 as the cost of the construction and a receipt of the same was issued by the defendant being. Money Receipt No. 5673, dated 1.12.94. He was waiting for the construction of the said items and in the mean lime (he plaintiff put a pucca brick wall to cover the area as per the terms of the lease deed. In the meanwhile, the defendant suddenly served a notice dated 24.6.95 on the plaintiff asking him to stop further construction over the suit land and also to show cause as to why further action should not be taken. The plaintiffs case is that in view of the deed of lease the defendant had no right to issue any such notice and the action of the defendant was wholly illegal and arbitrary. Hence the suit.

(3.) MRS Jaya Roy, learned counsel appearing on behalf of the appellant, tried to raise two points of law Firstly, she contended that the Courts below have not properly considered the evidence on record while recording their Findings and although there are concurrent findings of the Courts below, the same can be interfered with in the second appeal. In respect of her said submission she relied on a decision reported in 1991 (2) PLJR 630, Manilal @ Munilal V/s. Dr. Pasupati Nath Verma and Ors. Secondly she has submitted that the trial Court failed to frame an specific issue regarding the violation of the terms of the lease which was an important issue and that the defendant has been prejudiced by the judgments and decrees of the Courts below and the same are thus vitiated. In support other said ground she relief upon a decision reported in 2002 (1) JCR 25 (SC). Leela Sent and Ors. V/s. Rajesh Goyal and Ors.