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NAGAR PALIKA PARISHAD GHAZIABAD versus SWATANTRA BHARAT PAPER MILLS & OTHERS

High Court of Judicature at Allahabad

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Nagar Palika Parishad Ghaziabad v. Swatantra Bharat Paper Mills & Others - SECOND APPEAL No. - 973 of 1999 [2007] RD-AH 16161 (1 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 973 of 1999

Nagar Palika Parishad Pilkhuwa, Ghaziabad Vs. M/s. Shwatantra Bharat Paper Mill (P) Ltd. and another

~~~~

Hon. Dilip Gupta, J.

Defendant No.2 Nagar Palika Parishad Pilkhuwa, Ghaziabad has filed this Second Appeal for setting aside the judgment and decree passed by the learned VIth Additional District Judge, Ghaziabad by which the Civil Appeal, that had been filed by defendant No. State of U.P. against the judgment and decree of the Trial Court, was dismissed.

The Original Suit had been filed for a declaration that the plaintiff was the exclusive owner in possession of the land and the Building in Khasra Plot No. 2111/2. It was stated that the plaintiff purchased the Paper Mill with the plant and machinery along with plot Nos. 2149,2136 and 2111/2 measuring 4 bighas from its previous owners, namely, Jagan Nath, Magan Nath and Amar Nath by the sale-deed dated 7.10.1953. The factory building had been constructed and the machinery installed in the year 1950-51. The main building of the factory was constructed on plot Nos. 2149 and 2136 but plot No. 2111/2 was kept open by the owners for being used for godown and for stocking scrap, paper and for drying the products as well as for placing other articles meant for loading or those articles which were unloaded from the Railway wagons. The owners had also constructed a room in the said plot No. 2111/2. The said plot was also bounded by a boundary wall. It was, therefore, asserted that the plot in dispute vested in the predecessor-in-interest under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'). The plot was not lying Banjar.

A written-statement was filed by the defendants. It was asserted by defendant No.1, namely, the State of U.P. that plot Nos. 2149,2136 and 2111/2 were Banjar at the time of the abolition of the Zamindari and, therefore, vested in the State of U.P. and then in the Gaon Sabha. The possession of the plaintiff over the same was illegal and steps would be taken to dispossess it. Defendant No.2, namely, Municipal Board, Pilkhuwa also raised identical pleas in the written-statement. It was also stated that the Paper Mill or building did not exist in the disputed land in the year 1950-51 and, Jagan Nath, Magan Nath and Amar Nath had no authority to sell the land to the plaintiff.

Issue No.3 that had been framed by the Trial Court was whether the plaintiff was owner in possession of the disputed plot, namely plot No. 2111/2. The Trial Court, on the basis of the evidence both oral and documentary, came to the conclusion that the plaintiff was the owner of the disputed land which was surrounded by the boundary wall and a room had also been constructed in the said plot. It was also found that the main building of the Paper Mill was constructed in Plot Nos. 2136 and 2149 in the year 1950 and that a public road intervened the said building and the disputed plot. It was found that the boundary wall had been raised by the predecessor in interest of the plaintiff but the room had been constructed by the plaintiff subsequently.

The Suit was accordingly decreed in respect of plot No. 2111/2. The Lower Appellate Court confirmed the findings of the Trial Court and dismissed the Appeal.

I have heard the learned counsel for the appellant and the learned counsel appearing for the respondents.

Learned counsel for the appellant submitted that plot No. 2111/2 was Banjar land and, therefore, it vested in the State and then in the Gaon Sabha and findings to the contrary recorded by the Courts below are liable to be set aside.

Learned counsel for the respondents, however, submitted that plot No. 2111/2 was not Banjar land as in fact it was bounded by a boundary wall and also contained a constructed room. In such circumstances, the land vested in the predecessor-in-interest of the plaintiff who, therefore, had the authority to transfer it to the plaintiff. He further submitted that in any view of the matter, it was land appurtenant to the main factory and building and, therefore, also it did not vest in the State.

This Second Appeal has been filed by the Nagar Palika Parishad which had been arrayed as defendant No.2 in the Original Suit. It needs to be mentioned that against the judgment and decree of the Trial Court suit, only State of U.P., namely, defendant No.1 had filed the Civil Appeal. Defendant No.2 Nagar Palika Parishad did not file any Civil Appeal. The State of U.P. has not filed any Second Appeal against the judgment and decree of the Lower Appellate Court.

The Courts below have recorded a categorical finding of fact that the boundary wall had been constructed in plot No. 2111/2 by the erstwhile owners though the room in this plot had been constructed by the plaintiff. It has also been found that the factory and its building had been constructed in the year 1950-51 and machinery had also been installed in the factory.

In Shatruhan Vs. Ramnath and others (1980) RD, 150, a learned Judge of this Court observed as follows:-

"I respectfully agree with the above mentioned authorities. In the instant case it has been found that initially there was a boundary wall in the land in dispute. Although the boundary wall fell down and because of the financial stringency and want of funds the plaintiffs could not construct new wall and enclosed it by Jhankars and has been in exclusive use of the plaintiffs for tethering cattles and other uses. In the circumstances it is clear that this was a Gher which would clearly come within the meaning of the word "building" as contemplated by Section 9 of the U.P. Zamindari Abolition and Land Reforms Act. Since it is a building the said land would vest under Section 9 of the Act with the plaintiffs respondents. The view taken by the lower appellate court in the circumstances was correct in law."

In coming to the aforesaid conclusion, reliance was placed upon the earlier decisions of this Court in Ram Diya Vs. Gram Samaj, 1963 RD 34, Raja Sharda Narain Vs. Gram Samaj, Thathia, 1963 RD 184 and Gram Sabha Vs. G.S. Prasad Sahu, 1971 RD 124. In Ram Diya (supra) it was observed as follows:-

"that a Gher in a village will be a building within the meaning of Section 9 and consequently it must be held that the site of the Gher was settled with the person who is in possession of the said building."

In view of the aforesaid decisions, it has to be held that the land contained in plot No. 2111/2, which was surrounded by a boundary wall and had a constructed room, was a land appurtenant and, therefore, did not vest in the State or the Gaon Sabha. In fact, it vested under Section 9 of the Act in the predecessor-in-interest of the plaintiff. There is, therefore, no infirmity in the findings recorded by the Courts below.

The Second Appeal is, accordingly, dismissed at the admission stage as no substantial question of law arises for consideration. Interim order, if any, stands vacated.

Dt/-1.10.2007

Sharma


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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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