B. L. Yadav, J. - (1.) -
(2.) THIS is a plaintiff's appeal against the decree and judgment dated 19-4-1977 rendered by the Addl. Civil Judge, Kanpur, dismissing the suit, filed by the plaintiff appellant for the relief of permanent injunction restraining the defendant from taking possession of plot no. 535 and 510/2, area 1 bigha comprising premises no. 81-A, situate in village Mohsinpur Distt. Kanpur. Plaintiff appellant filed the suit with the allegations that he was allotted plot numbers 525 and 510/2 on 12th October, 1957 by Pradhan of the Gaon Sabha, under the provisions of Rules 115-L, 115-M, 115-N, framed under the U. P. Zamindari Abolition and Land Reforms Act 1950, (for short the Act) for constructing a residential house and for running a Salt Petra Refinery Factory. The plaintiff was put in possession by the Gaon Sabha and the said construction was raised and he was running the factory. The number of construction is 81-A. Lateron the plaintiff wanted to extend the factory for which a plan was submitted to the Nagar Mahapalika in 1958 and after correspondence the Executive Engineer by his letter dated 7th June 1960 informed the plaintiff that these plots were proposed to be acquired for the purpose of Kalyanpur Panki Expansion Scheme, hence the plan submitted by the plaintiff would not be sanctioned. The plaintiff made several representations thereafter to the effect that his land cannot be acquired but ultimately it was acquired and oral undertaking was given that the appellant would be given an alternative land. The land was acquired and award was given on 29-7-63. The plaintiff filed writ petition no. 3601 of 1965, challenging the Land Acquisition proceedings, but the same was dismissed on 2-12-70. The defence was a total denial and that the plaintiff was not allotted the land by the Gaon Sabha nor any assurance was given, the land was correctly acquired and the suit was barred by res-judicata as the writ petition filed by plaintiff in the High Court challenging the Land Acquisition proceedings has been dismissed. The plaintiff has no cause of action to file the suit nor he was entitled to any relief.
(3.) THE trial court framed a number of issues and held that no oral undertaking was given to the plaintiff nor the same was binding on the defendants. It has been further held that as the certified copy of the judgment of this court dismissing the writ petition was not filed hence the suit was not barred by res-judicata, now it was barred by time, the land was not allotted by the Gaon Sabha in favour of the plaintiff nor the plaintiff has any cause of action against the Nagar Mahapalika, the plaintiff was a trespasser and as such the suit has been dismissed by the trial Court. Present first appeal has been filed by the plaintiff to set aside the judgment and decree passed by the trial court and to decree the suit. Learned counsel for the appellant urged that on behalf of the defendant undertaking was given by one Sobha Ram, the Executive Engineer and that is binding on the defendant. The land was allotted by the Land Management Committee executing a lease deed in favour of the plaintiff in respect of the land in dispute and no application for cancellation of the lease deed was filed as required by section 198 of UP ZA and LR Act, 1950 & Rule 115-P framed under that Act hence the lease deed cannot be cancelled in collateral proceedings. The reliance was placed on a Full Bench decision of this Court (to which one of us Brother K. C. Agarwal, J. was a member) Similesh Kumar v. Gaon Sabha, 1977 AWC 259. It was also urged on behalf of the appellant that the plaintiff has a cause of action and the dismissal of the writ petition shall have no effect nor it shall operate as res-judicata.;