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SUNHARI LAL versus NAGAR PANCHAYAT THRU' CHAIRMAN & ORS.

High Court of Judicature at Allahabad

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Sunhari Lal v. Nagar Panchayat Thru' Chairman & Ors. - WRIT - C No. 6458 of 2005 [2006] RD-AH 16741 (22 September 2006)

 

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 OF ALLAHABAD

           RESERVED

Civil Misc. Writ Petition No.6458 of 2005

Sunhari Lal.............................................................................Petitioner

Vs.

Nagar Panchayat, Sadabad and others...............................Respondents

-------------

Hon'ble Tarun Agarwala, J.

The petitioner submitted a plan for the construction of a building before respondent No.1 on plot No.1225. It was  alleged  that  the respondent No.1 sat over the matter. Consequently, the petitioner gave a statutory notice alleging that the petitioner would proceed to make the necessary constructions after the expiry of the period of notice. Based on this notice, respondent No.1 filed a suit before the Civil Judge (Junior Division) praying for a permanent injunction and  for restraining the petitioner from raising any illegal constructions and for causing any interference in the peaceful possession of the respondent No.1. An application for temporary injunction was also filed and the trail court after hearing the parties granted a temporary injunction restraining the petitioner from raising any constructions and from interfering in the possession and occupation of the plaintiff-respondent No.1. The petitioner filed a Misc. Appeal under Order 43, Rule 1 (r) of the C.P.C. which was dismissed. Consequently, the present writ petition.

The learned counsel for the petitioner submitted that the respondent-plaintiff had neither any primafacie case nor balance of convenience  was in its favour nor any irreparable injury was being caused to the plaintiff. Consequently, the court below committed a manifest error in granting an injunction. The learned counsel further submitted that the report of the Lekhpal was an exparte report and was passed pursuant to an order issued by the Court without giving prior notice to the petitioner under Order 39, Rule 8(3) of the C.P.C. The learned counsel contended  that the court below while issuing a survey did not issue any notice to the petitioner and therefore, an exparte report was filed by the Lekhpal which was inadmissible in evidence. It was also contended that the map prepared by the Lekhpal was not based on any fixed points, and therefore, the said map could not be relied upon nor was it admissible in evidence. It was also contended that the courts below did not take into consideration the order of the Judicial Magistrate passed under Section 133 of the  Cr.P.C. nor considered the Amin's report which clearly established that the possession of the disputed portion was with the petitioner and that there was no land between the boundary wall of the petitioner and the adjoining plot No.1228.

Heard Sri Manish Goyal, the learned counsel for the petitioner and Sri A.N.Bhargava, the learned counsel for the respondents.

Admittedly plot No.1225 is in the name of the petitioner whereas plot No.1228 is a Nala. The encroachment is alleged between the Nala and the boundary wall of the petitioner. The petitioner has relied upon the report of the Judicial Magistrate dated 23.2.1993 under  section 133 Cr.P.C. in which it has been stated that the plot No.1225 is bounded by a boundary wall adjoining plot No.1228. On the strength of this report, the learned counsel for the petitioner submitted that there is no land between the Nala and the boundary wall and that the construction that was being raised was in plot No.1225. The learned counsel for the petitioner submitted that the courts below have committed an error in discarding this evidence. A perusal of the Judicial Magistrate's order does not indicate that no land exists between the Nala and the boundary wall of the petitioner. Further the order is of the year 1993 and much water has flown since then and therefore, the said order cannot be relied upon completely. On the other hand, on the basis of the Lekhpal's report, open land has been shown between the plot of the petitioner and the Nala on which the alleged construction is  sought to be raised.

The submission of the learned counsel for the petitioner that the report of the Lekhpal is an exparte report and was inadmissible in evidence, in view of the fact, that the order issuing the survey was passed in violation of Order 39, Rule 8(3) C.P.C. is patently erroneous. Assuming that the Court did not issue any notice to the petitioner under Order 39, Rule 8(3) of the C.P.C. on the application for the inspection of the property, the said order or the report cannot be held to be illegal or the report to be inadmissible in evidence, for the simple reason, that at the time when the survey was made by the Lekhpal, the petitioner was present. The survey was made in the presence of the petitioner, therefore, it is immaterial as to whether the Court had in fact issued notice to the petitioner under Order 39, Rule 8(3)of the C.P.C. or not. Further, it has come on record that no objection was filed by the petitioner against the report of the Lekhpal. The Lekhpal gave a categorical finding that the alleged construction was being made on the disputed portion. In view of the aforesaid, the Court below was justified in primafacie concluding that the petitioner was encroaching upon plot No.1228 and that the alleged construction was being made on plot No.1228.  The map prepared by the Lekhpal,   at this stage,  cannot be thrown away on the ground that the map was not prepared on the basis of fixed points. In view of the aforesaid, the Courts below were justified in restraining the  petitioner from raising any construction on the disputed portion.

The writ petition consequently fails and is dismissed. Since the suit is of the year 2001, I direct the trial court to decide the suit within a period of one year from the date of the production of a certified copy of this order. It is made clear that the parties shall not seek any undue adjournment.

Dated: 22.9.2006

AKJ.


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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