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ARUN CHANDRA versus ADHYAKSHA, NAGAR PALIKA, JALALABAD, SHAHJAHANPUR & ANOTHER

High Court of Judicature at Allahabad

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Arun Chandra v. Adhyaksha, Nagar Palika, Jalalabad, Shahjahanpur & Another - SECOND APPEAL No. - 972 of 2007 [2007] RD-AH 15849 (21 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 972 of 2007

Arun Chandra

Vs.

Adhyaksha Nagar Palika Jalalabad & Anr.,

*******

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Court No. 7 Shahjahanpur by which the Civil Appeal that had been filed by the plaintiff was dismissed and the judgment and decree passed by the lower Court was confirmed.

The Original Suit had been filed for permanent injunction to restrain the defendants and their employees from evicting the plaintiff from the temporary structure that had been put up by him and from demolishing the same. The Officers of the Nagar Palika Parishad Shahjahanpur who had been arrayed as defendants in the Suit, filed a detailed written statement stating that the Suit itself was not maintainable as the Nagar Palika Parishad and the State of U.P. had not been impleaded as defendants in the Suit. It was also stated that the Nagar Palika Parishad had never granted permission to the plaintiff to raise any construction and the contractor may have been realizing tehbazari from the plaintiff but that did not authorize the plaintiff to put up the structure on the Nazul land. One of the issue framed by the Trial Court was whether the plaintiff was a tenant of the Nagar Palika Parishad or not. This issue was decided against the plaintiff holding that he was not the tenant. The Trial Court also held that the plaintiff had put up the structure without permission of the Nagar Palika Parishad and that State of U.P. and the Nagar Palika Parishad were a necessary party and, therefore, the suit was bad for non-joinder of the necessary parties. The lower Appellate Court confirmed the aforesaid findings. The suit was, accordingly, dismissed and the Civil Appeal filed by the plaintiff was also dismissed by a detailed judgment.

Learned counsel for the appellant submitted that the permission granted to the plaintiff by the defendants amounts to a license coupled with the grant within the meaning of Section 60(b) of the Indian Easement Act, 1882. This contention cannot be accepted. Both the Courts below have found as a fact that the Nagar Palika Parishad had not granted any license to the plaintiff. This finding is based on the perusal of the evidence on record and nothing has been pointed out by the learned counsel for the appellant which may indicate that the said finding is perverse. This apart, the plaintiff had not impleaded the necessary parties namely the State of U.P. and the Nagar Palika Parishad and, therefore, the suit was bad for non-joinder of necessary parties. It needs to be mentioned that only the Officers of the Nagar Palika Parishad had been impleaded.

There is, therefore, no merit in this Second Appeal. It is, accordingly, dismissed at the admission stage, as no substantial question of law arises for consideration.

Date: 21.9.2007

NSC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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