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Nagar Nigam, Gorakhpur Thru' Administrator Nagar Nigam v. Subhash Rao - SECOND APPEAL No. - 1014 of 2007  RD-AH 16308 (4 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Second Appeal No. 1014 of 2007
Nagar Nigam, Gorakhpur
Hon. Dilip Gupta, J.
The defendant Nagar Nigam, Gorakhpur has filed this Second Appeal for setting aside the judgment and decree of the learned Additional District & Sessions Judge, Court No.8, Gorakhpur by which the Civil Appeal that had been filed by it was dismissed.
The Original Suit had been filed for permanent injunction to restrain the defendant and its agents from demolishing the house in dispute and from interfering with the right of the plaintiff to use the house. It was alleged that the plaintiff had purchased two and half decimal land in Araji No.1 from the Gaon Sabha for residential purposes after paying Rs.150/- as Najrana on 14th September, 1969 and constructed a house and started living along with his family members. Up to the year 1982 the said village was out of the municipal limits and was thereafter included in the municipal limits of Nagar Nigam, Gorakhpur. It was stated that on 27th October, 1994, the officers of Nagar Nigam came to demolish the house of the plaintiff as they wanted to construct a road over the land in dispute.
In the written statement filed by the Nagar Nigam, it was stated that the land in dispute had not been settled by the Gaon Sabha or by the Nagar Nigam in favour of the plaintiff and the plaintiff had illegally encroached the land which was a public land.
The Trial Court decreed the suit and the Civil Appeal filed by the Nagar Nigam was dismissed. The Courts below have held that though the plaintiff may not be the owner of the disputed property but as he had raised the constructions and had been living in the said house since the year 1969, the Nagar Nigam cannot demolish the house without taking recourse to the procedure prescribed by law.
Learned counsel for the appellant submitted that as the plaintiff was not found to be the owner of the property, the suit itself was liable to be dismissed. This contention of the learned counsel for the appellant cannot be accepted. The Courts below have recorded a categorical finding of fact that the plaintiff has been in possession of the disputed property since the year 1969 and has been residing after constructing the house. In such circumstances, even if the plaintiff is found not to be the owner of the property, then too, he cannot be evicted except in accordance with the procedure prescribed by law. There is, therefore, no infirmity in the judgment and decree impugned in this Appeal.
The Second Appeal is liable to be dismissed at the admission stage as no substantial question of law arises for consideration.
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