ABDUL MAJID Vs. NAGAR PALIKA BHADOHI
LAWS(ALL)-1980-4-35
HIGH COURT OF ALLAHABAD
Decided on April 11,1980

ABDUL MAJID Appellant
VERSUS
NAGAR PALIKA BHADOHI Respondents


Referred Judgements :-

QADIR BUX VS. RAMCHAND [REFERRED TO]



Cited Judgements :-

RAM DULARI VS. MUNICIPAL BOARD ORAI [LAWS(ALL)-2012-8-24] [REFERRED TO]


JUDGEMENT

R. S. Singh, J. - (1.)This is the plaintiff's second appeal against the decree and judgment dated 23-1-1971 of the lower appellate Court affirming the decree of the trial Court, by which the plaintiff's suit was dismissed. The suit giving rise to this appeal was filed by the plaintiff-appellant for perrranent injunction restraining the defendants from constructing wall in plot No. 1 of Chak Dargah Misr. Syed Rasool, Bhadobi and from interfering in plaintiff's possession over the said land. Later on, a relief for demolition of walls A. B. C. and removal of electric wires, water pipe and for possession was added in the plaint. According to the plaintiff, he is a mufidar of Plot No 1 and he has been in possession of the same. The land lies within the limits of Municipal Board, Bhadohi, where Zamindari Abolition and Land Reforms Act is not applicable. The defendant, without any right or title, began to dig foundation for construction of some wall on 16th May, 1962. It has been alleged by the plaintiff that during the pendency of the suit, the defendant extended the wall upto print 'c' as shown in the site plan given at the foot of the plaint and constructed Nali shown by letter 'z' and laid a water pipe in the ground as shown by letter 'z'. Electric wires have been carried over-head on the land in dispute. It is further alleged that there are two rooms on the land in dispute belonging to the plaintiff, which are in the occupation of Mala Singh and Raval Singh as plaintiff's licensees. The suit was contested by the defendant on the grounds that the land in dispute was camping ground (Para 9) of Banaras State. After the merger of Banaras State, this land vested in U P. State and it was handed over to the Municipal Board, Bhadohi for construction of water works. The water works has been constructed on that ground according to the plan. The plaintiff had no title or interest in the land in dispute. He had never been in possession over the same. It was further pleaded that the suit is barred by time. The defen dant also pleaded that the suit is bad for want of notice under Section 326 of the U. P. Municipalities Act (hereinafter referred to as Act ). The suit was dismissed by the learned Munsif. The plaintiff preferred an appeal against the decree and judgment of the trial Court, which too was dismissed by the lower appellate Court. The plaintiff has preferred this appeal against the decrees and judgments of the Courts below. Originally, the main controversy between the parties in this case was three-fold. Firstly, whether the plaintiff-appellant is the owner of the property in dispute ? Secondly, whether the suit is barred by Article 142 of the Limita tion Act for not filing the suit within 12 years of dispossession? and thirdly, whether the suit is bad for want of notice under Section 326 of the Act? The lower appellate Court has accepted the plaintiff's claim that he is the owner of plot No. 1 in dispute. But the lower appellate Court repelled the other two contentions of the appellant. The suit was dismissed the lower appellate Court on the finding that the suit was not filed within 12 years from the date of dispossession and further the suit is bad for want of notice under Section 326 of the Act. Therefore, only two controversies remain for consideration in this appeal. Firstly, whether the plaintiff's suit is barred under Article 142 of the Limitation Act for not filing the suit within 12 years of dispossession and secondly, whether the suit is bad for want of notice under Section 326 of the Act. It has been contended by the learned counsel for the appellant that while deciding the first question the Courts below placed wrong burden of proof on the plaintiff. According to the learned counsel, the title of the plaintiff in the land in dispute has been established. Therefore, in absence of possession of the defendant, the possession of plaintiff continues as before. It appears from the fact of the case that some area of the plot in dispute was covered with buildings and the rest of the area of the plot in dispute was vacant. One of the controversies between the parties was that whether the rooms were constructed by Mala Singh and Raval Singh as plaintiff's licensees as alleged by the plaintiff. The lower appellate Court recorded a finding that it has not been proved that the rooms were constructed by Mala Singh and Raval Singh as plaintiff's licensees But this controversy has nothing to do with the land in dispute over which the plaintiff has made constructions. It has not been proved in this case that on the piece of land', over which the defendant has made unauthorised construction was in possession of the defendant or his predecessor in interest. Even there is no finding of the lower appellate Court on this point. Even if the rooms were constructed by Mala Singh and Raval Singh not as plaintiff's licensees, they have nothing to do with the land in dispute, over which the defendant has made unauthorised constructions. The title of the defendant and the title of the predecessor-in interest of the defendant and also 12 years possession over the land in dispute have not been proved in this case. Therefore, the plaintiff, who is the owner of the land in dispute, will be held to be in possession in any vie A- of the case. In Qadir Bux v. Ram Chand and others (A. I. R. 1970 All. 289 (F. B.)), it has been held that there is obviously some distinction between mere dispossession or discontinuance of the possession of the plaintiff and the adverse possession of the defendant. Originally an owner of property is presumed to be in possession of it and as such presumption is in his favour where there is nothing to the contrary. But when the plaintiff himself admits or it is proved that he has been dispossessed by the defendants, the Court cannot start with the presumption in his favour that the possession of the property was with him. It is a well settled view that the possession follows title. Once the title of the plaintiff is proved, his possession will be presumed unless it is proved that the defendant or defendant's predecessor-in interest comes in and drives out the plaintiff from the possession, it implies ouster and driving out of posses sion against the will of a person in actual possession. It has not been proved in this case nor there is any finding of any Court to the effect that the plaintiff was dispossessed by the defendant or defendant's predecessor-in interest from the land in dispute, over which unauthorised constructions have been made by the defendant. In this case, the plaintiff has throughout asserted his possession over the land in dispute. Therefore, the burden was on the defendant to prove that the defendant or defendant's predecessors-in-interest dispossessed the plaintiff from the land in dispute. The Courts below clearly fell in error in placing wrong burden of proof on the plaintiff in this case and they have wrongly held that the plaintiff in this case is not in possession within 12 years of the riling of the suit. Therefore, the suit was not barred under Article 142 of Limitation Act. The next question for consideration is whether notice under Section 326 of the Act was necessary in this case before filing of the suit. Section 326 of the Act runs as follows;- "suits against Board or its officers- (1) No suit shall be instituted against a Board, or against a member, officer or servant of a Board in respect of any act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a Board, left at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of com pensation claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left. (2) [* * *]. (3) [* * *]. (4) Provided that nothing in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postpone ment of the commencement of the suit or proceeding. " This section provides that no suits shall be instituted against a Board. . . . . . . . . . . . . . . until the expiry of two months next after notice in writing to the Board. But in a case where relief claimed his an injunction, notice as contemplated in this section, is not necessary. When this suit was filed, the relief claimed was for mandatory injunction, but subsequently, the relief for demolition was also added in the plaint. According to the plaint allegations and relief claimed therein, initially notice under Section 326 was not necessary. But according to the defendant's case, in fact it is a suit for demolition and not for injunction, and therefore, notice was necessary, In this case, it is necessary to find out as to whether it was really a suit for mandatory injunction or just to by-pass the provisions of notice, suit purporting to be for injunction, was filed. The answer of this question depends on the fact that if the construction was in existence from before filing of the suit, in that case filing of the suit for injunction would be just to by pass the provisions of notice. But where the construction was yet to start or it was in progress, the suit for injunction to restrain from starting construction or making further construction will be a suit for injunction in the real sense. In the present case, according to the evidence and finding of the Courts below, when the suit was filed, construction had just started and it was in progress and the same was completed during the pendency of the suit. In this view of the fact, the suit was rightly filed originally for injunction to restrain the defendant from making further construction, but when further constructions were completed during the pendency of the suit, the plaint was rightly amended for the relief of demolition. In view of these facts of the case, notice under Section 326 of the Act was not at all necessary. The lower appellate Court has erred in law in holding that the suit is bad for want of notice under Section 326 of the Act. In view of the facts, what have been discussed above, the decrees passed by the Courts below are erroneous in law and they deserve to be set aside. In the result, I allow this appeal, set aside the decrees of the Courts below and decree the plaintiff's suit for demolition of unauthorised constructions as mentioned in the plaint and the defendant is permanently restrained from inter ferring in the possession of the plaintiff over the said land. However, the parties shall bear their own costs. .
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