Decided on May 25,2007

Tilak Nath Appellant
Nagarpalika Parishad Through Its Executive Officer Respondents


Rajesh Tandon, J. - (1.)HEARD Shri Lok Pal Singh, Senior Advocate assisted by Shri Pradeep Lohani and Shri Lalit Mohan Verma, Counsel for the appellant and Shri Sharad Sharma, Counsel for the respondent. By the present second appeal filed under section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment dated 16.9.2003 and the decree dated 23.9.2003 passed by the Civil Judge (Junior Division), Nainital.
(2.)BRIEFLY stated, a suit was filed by the plaintiff praying for the permanent, injunction restraining the defendant to dispossess the plaintiff except in accordance with law. According to the plaintiff, he is the resident of village Alukhet, Patti Bhawali, Tehsil and District Nainital. The plaintiff is doing business at Tallital under Nagar Palika, Nainital for the last 10 years. Since 1991, the plaintiff is submitting his application for the allotment of vacant place. Taking into consideration the applications filed by the plaintiff/the defendant allotted the godown on 11.2.1994 to the plaintiff and an instruction was made that the plaintiff may use the godown excluding an area to the extent of 6 ft. The plaintiff started supplying the fruits and vegetables from that godown. According to the plaintiff, with regard to the allotment of the said godown, the inspection report has been submitted to the concerned officers and the allotment of the godown was found to be right and the rent was fixed to the extent of Rs. 125/ - per month. On 24.1.1997, when the plaintiff went to deposit the rent of the godown, the same was denied. The plaintiff has stated that he was threatened to be dispossessed from the said godown. On 27.2.1997 at about 12 noon, the employees of the defendant came in the said godown and tried to dispossess the plaintiff. Hence, the suit has been filed in anticipation that the defendant may dispossess the plaintiff, therefore, he has prayed not to dispossess except in accordance with law. It has also been stated that the plaintiff could not serve the notice to the defendant under section 326 (4) of the Nagar Palika Act due to lack of time and gravity of the matter.
The defendant has filed the written statement, paper No. 33 -Ka, and has denied the submissions stated in the plaint. In the additional pleas of the written statement, the defendant has stated that the suit is barred by the section 15 of U.P. Public Premises Act, 1972. The plaintiff has never got the possession of the disputed property. The suit of the plaintiff not maintainable and is liable to be dismissed.

(3.)ON the pleadings of both the parties, the Trial Court framed the following issue on 28.8.1997: - -

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