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2005 DIGILAW 122 (RAJ)

Amar Kumar v. Municipal Council

2005-01-13

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This appeal has been preferred against the order dated 17.02.1993 passed by the learned Additional District Judge, Hindaun City, in Civil Regular Appeal No. 20 of 1992 (70 of 1994) whereby the learned lower appellate Court framed the additional issue and remanded the case back to the learned trial Court under Order 41 Rule 23, CPC seeking decision on the additional issue framed and calling the finding before it. 2. The facts in brief are that the plaintiff-appellants filed a suit for injunction against the defendant-respondent restraining the respondent-Municipal Council, Hindaun City, from demolishing the shop constructed by the plaintiff-appellants in the year 1956 on the basis of the Patta granted to the plaintiff-appellants on 012.1956 as well as on the basis of the permission granted by the respondent-Municipal Council. 3. The submission of the learned Counsel for the plaintiff-appellants is that the learned trial Court had framed the issue No. 1 which was comprehensive in nature in which the burden had been placed upon the defendant-respondent to show that the land in question on which the shop had been constructed was a Sivay Chaq land belonging to the State Government and the Municipal Council contrary to law had taken the "Nazrana" from the plaintiff-appellants and given permission as well as the patta to them. The other submission of the learned Counsel for the appellants is that since, it was the plea of the Municipal Council that the land was a sivay chaq land and that the permission had been granted contrary to law while admitting that the Municipal Council had taken the Nazarana and issued a patta and granted permission but the same should not have been granted contrary to the statutory provisions, in this view of the matter when the grant of permission, taking of Nazrana and issuance of patta by the respondent-Municipal Council defendant is not in dispute, the burden was rightly placed upon the defendant-Municipal Council to prove its case and that the learned lower appellate Court by taking erroneous assumption framed the additional issue that the shops had been constructed on the land on which previously the predecessors of the plaintiff-appellants were having their kham houses and on this basis the patta was issued by the Municipal Council and place the burden upon the plaintiff-appellants. 4. 4. I have gone through the impugned orders of the learned trial Court and that of the lower appellate Court. In the instant case, the parties have gone into the trial on the basis of the pleadings and the issue framed by the trial Court in that behalf on the point at issue the parties have led the evidence after full opportunity provided to them. 5. The issue No. 1 framed by the trial Court reads as under: - ^^ftl Hkwfe ij nqdkukr eqruktk cuh gqbZ gS D;k og tehu flok;pd Hkqfe Fkh tks jkT; ljdkj dh Fkh vkSdj oknhx.k dks nqdkukr rkehj djus dh eajh fcuk fdlh j uxjikfydk us utjkuk ystwvf /kdkj o dkuwu ds fo:+) dh o iêk xyr tkjh fd;k x;k gSA** 6. The above issue was based upon the pleadings of the defendant in the written statement and consequently, the burden was rightly placed upon the defendant-Municipal Council, Hindaun. The learned appellate Court has framed the following proposed issue:- ^^vk;k fooknkLin 2 tksMh 4 nqdkusa oknhx.k ds iwoZt xksisoj] nsodhuUnu us vius [kke edkuksa dh txg ij gh uxjikfydk ls iêk gkfly dj cukbZ gSA** 7. The burden was placed upon the plaintiff . 8. In view of the fact that the issue No. 1 framed by the trial Court was based upon the pleadings of the defendant-Municipal Council that the land in question being "Savay Chaq" did not vest in the Municipal Council, Hindaun and consequently, it had no authority to take "Nazrana", issue "Patta" or grant any permission in respect of the "Savay Chaq" land. 9. The proposed issue framed by the appellate Court is not necessary. In the facts and circumstances of the present case, since, the Municipal Council had raised this specified plea that in spite of the fact that it had charged the nazrana and patta for the land and the plaintiff constructed the shops on the basis of such permission as was granted by the Municipal Council, the same was granted contrary to law as the land in question, was, as per the case of the Municipal Council sivay chaq land belonging to the State Government. In this view of the matter, the framing of the additional issue by the appellate Court in the proposed term is not relevant for the decision of this case and is a redundant exercise. 10. In this view of the matter, the framing of the additional issue by the appellate Court in the proposed term is not relevant for the decision of this case and is a redundant exercise. 10. Consequently, the order dated 17.02.1993 passed by the lower appellate Court is set-aside. The matter is remanded back to the lower appellate Court for decision of the appeal on merits. The parties are directed to appear before the learned lower appellate Court on 14.02.2005. However, it is expected that the learned lower appellate Court shall decide the appeal after affording an opportunity of hearing to the parties within a period of six months from receipt of the certified copy of this order. Since, the date has already been fixed, the lower appellate Court need not issue fresh notice of the appeal to the parties. 11. There shall be no order as to costs.