Altamas Kabir, J. - (1.) Leave granted.
(2.) One, Udai Chandra Banerji had two sons, namely, Suresh Chandra Banerji and Ramesh Chandra Banerji. On 1st February, 1927, the two brothers jointly purchased 8848 square yards of land in Khasra Plot No. 2305 situated in Kasba Koli. The said khasra number was subsequently converted into Plot No. 1002. Although, the purchase was said to have been made jointly by Suresh Chandra Banerji and Ramesh Chandra Banerji, the Sale Deed was executed in the name of Ramesh Chandra Banerji, who was the elder brother. From the Sale Deed, it would be evident that a Kothi (building) was in existence over a part of the said land and the land adjacent to the building was lying vacant. Certain additional constructions were raised on the vacant portions which were completed in the year 1930. The said property fell within the municipal limits of Aligarh. On 1st April, 1957, house tax was imposed for the first time and the name of Suresh Chandra Banerji was recorded in the assessment list of the house tax payers in the records of the Municipal Board. In 1930, Ramesh Chandra Banerji and Dr. Suresh Chandra Banerji shifted into the Kothi with their families and continued to reside therein. In 1941, Ramesh Chandra Banerji expired and after his death, a family settlement is said to have taken place between Ramesh Chandra Banerji's heirs and Dr. Suresh Chandra Banerji, as a result whereof the family of Ramesh Chandra Banerji shifted to Kanpur and Dr. Suresh Chandra Banerji became the exclusive owner of the Kothi in question and he resided therein along with his family members till his death on 16th August, 1989. At the time of his death Dr. Suresh Chandra Banerji left behind him surviving his sons, Paresh Chandra Banerji, Dinesh Chandra Banerji, Bhavesh Chandra Banerji and Umesh Chandra Banerji, who died in August, 1997.
(3.) Mahesh Chandra Banerji, one of the sons of late Dr. Suresh Chandra Banerji, claims to have acquired knowledge that a Development Scheme known as Yojana No. 7 had been taken up by the Avas Evam Vikas Parishad in 1968 and that a notification under Section 28 of the Avas Vikas Parishad Adhiniyam, being U.P. Act No. 1 of 1968, had been issued on 5th October, 1968 and a further notification under Section 32(i) of the Adhiniyam was issued on 25th January, 1971, which was published in the Gazette on 13th February, 1971. Under the said scheme, along with other lands, the property of late Dr. Suresh Chandra Banerji in Khasra Plot No. 1002, was also proposed to be acquired. Objections were filed against the proposed acquisition and in response thereto the Respondent No. 1 decided to exclude the residential house of the appellants and the adjoining land from the acquisition. Despite the same, further representations were made by the appellants to allow them full frontal access from G.T. Road to their residential premises, since they wanted to establish a nursing home on the said plot. It appears that a decision was even taken in that regard and Resolution No. 1/130/79 dated 16th January, 1979 was accepted by the Respondent No. 1- Parishad and the cost of the said land was fixed at not less than R.82/- per square metre. According to the appellants, since the said resolution/decision was not being given effect to, and, on the other hand, auction notice was issued by the Parishad on 23rd August, 1993 for sale of the acquired lands under the above-mentioned scheme, they were compelled to file Original Suit No. 307 of 1998 before the Civil Judge, Senior Division, Aligarh, inter alia, praying for the following reliefs: (a) By passing a decree for permanent prohibitory injunction the defendant 1st set be restrained from interfering in the peaceful possession of the plffs. And defendant II set over the land shown by and wards A B C D and red colour shown in the map annexed with the plaint. (b) By passing a decree for mandatory injunction the defendant No. 1 and 5 be directed to remove their encroachment from the land of the plaintiff detailed at the foot of the plaint and to restore it's position and possession as on the date of suit within the time specified by the court and in failure to do the same be done by agency of court. ;