K. N. Singh, J. - (1.) :-
(2.) THIS appeal is directed against the judgment and decree of Civil Judge, Bijnor, dated 20-3-1978 decreeing the plaintiff-respondent's suit. The plaintiff-respondents who are 68 in number filed a suit for permanent injunction, restraining the Municipal Board, Chandpur defendant-appellant from interfering with the plaintiff's right to reside in their houses and using the land appurtenant - thereto. The suit was filed with the allegations that the residential houses of the plaintiff are situated on plots Nos. 1507, 1508, 1557 and 1558 in Mohalla Bazar Mehma Sarai in the town of Chandpur. The plaintiffs are in possession of the houses situated thereon and they have been enjoying the open land as Sahan. The plaintiff further asserted that the said houses were in their occupation from the time of their ancestors and they have been repairing and building the said houses. The Municipal Board is not the owner of the houses and land and the land is not Nazul land. The plaintiffs have never paid any tax or rent to the Municipal Board in respect of their residential houses. The plaintiffs further asserted that they were illiterate persons. The Municipal Board taking advantage of their illiteracy obtained signatures while collecting subscriptions during the India-China war in 1962 and the Municipal Board has utilized those signatures for creating some documents against the plaintiffs. The Municipal Board has been trying to oust the plaintiffs from the houses lying in Mohalla Bazar Mehma Sarai treating them trespassers, the Municipal Board has been demanding rent from the plaintiffs on the ground that the site of their houses was Nazul land. The plaintiffs claimed for issue of a permanent injunction restraining the Municipal Board, Chandpur, from evicting them from their houses and from taking any action against the plaintiffs either to realise rent or to dispossess them from any of the houses, land or Sahan in any manner. The defendant-appellant filed written statement and contested the suit. In its written statement the appellant pleaded that Mehma Sarai situate in Mohalla Bazar is government property and that the land and the houses standing on the plots in dispute situate in Mohalla Bazar Mehma Sarai vest in the State Government and it is Nazul land. The Municipal Board has been entrusted its management. The plaintiffs and their ancestors have been paying rents to the Municipal Board and every year they have been paying rent till 1963 and thereafter they refused to pay rent. Proceedings were taken for their ejectment. The appellant further pleaded that neither the plaintiff-respondents nor their ancestors acquired any legal right or title to the land or buildings, they are not the owners of the same. Since the plaintiffs have not been paying rent, they are liable to be ejected and they are not entitled to any relief of injunction by the court. The appellant further pleaded that the suit was bad for non-joinder of the State Government. The suit was further bad on the ground that 68 plaintiffs had their individual rights and they could not join together to file one suit. The appellant further pleaded that the plaintiffs had filed suits No. 253/63 and 353/63 in the court of Munsif, Bijnor on a similar relief which has been dismissed. The respondents were, therefore, not entitled to maintain the suit. No relief for injunction could be granted in the absence of declaratory relief.
(3.) THE learned Civil Judge held that the plaintiffs are the owners of their respective houses situate in Mohalla Bazar Mehma Sarai and their possession has remained undisturbed either by the State Government or by the Municipal Board, Chandpur for a long period. THE trial court further held that since the houses of the plaintiffs have been in existence for more than 30 years and as no action was ever taken by the defendant-Board or the State Government to realise rent or premium, the plaintiffs acquired title to the land and the buildings. Since the plaintiffs as owners were in possession, they are not liable to ejectment and the Municipal Board has no right to interfere with their enjoyment of the buildings and the land or to demand rent from them. All other pleas raised on behalf of the appellant against the maintainability of the suit were repelled by the trial court on the findings that the State Government was not a necessary party and the plaintiffs who are 68 in number had common cause against the Municipal Board, hence they could file one suit. On these findings the learned Civil Judge decreed the plaintiff's suit and granted permanent injunction, restraining the appellant from interfering with the possession of the plaintiffs' right of residence in the houses lying within the boundaries of Mohalla Bazar Mehma Sarai and also the use and occupation of the said houses and the land lying around the said houses being used by the plaintiffs by way of Sahan. The plaintiff-respondents' case is that the plots in dispute are situate in Mohalla Bazar Mehma Sarai, their ancestors had constructed the buildings for their1 residence and they had been using the open land in front of their houses as Sahan for the last 100 years. Some of the houses were Kachha which were converted into pucca ones by the plaintiffs and their ancestors. Reliance was placed on 1867 Khasra extracts which recorded Bhathiaras in possession of the house situate in abadi on the disputed plots. The plaintiffs alleged that by their long continuous possession" they have acquired legal right to the buildings standing on the plots in dispute as well as to the buildings site and also to the open land situate in front of their buildings as Sahan. They have further asserted that the Municipal Board has been trying to evict them for no rhyme or reason. The Municipal Board first tried to evict them by filing criminal complaints but the criminal complaints were dismissed. Thereafter the Municipal Board has been demanding rent, taxes and trying to evict them by force in an illegal and unauthorised manner. The plaintiffs claimed relief for grant of perpetual injunction against the Municipal Board from dispossessing them from the land and the buildings.;