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2010 DIGILAW 3660 (ALL)

Municipal Board v. St. Judges Association School

2010-12-06

SANJAY MISRA

body2010
Hon’ble Sanjay Misra,J.—Heard Sri K.N.Saxena, learned counsel for the appellant.2. The order dated 3.8.2010 (order-sheet) indicates that notice on the sole respondent has been held sufficient.3. Cause list has been revised. None appears on behalf of the sole respondent inspite of repeated calls.4. This second appeal under Section 100 Code of Civil Procedure has been filed against the judgement and decree dated 10.10.1978 passed in Civil Appeal No. 62 of 1973, whereby it has allowed the suit for injunction filed by the plaintiff-respondent.5. Learned counsel for the defendant-appellant has submitted that the suit filed by the plaintiff-respondent related to the pathway, which they claimed to be passing through the play ground of their school and the cause of action to bring the suit arose when the defendant-appellant (Municipal Board, Jhansi) started making the said pathway into the pakka road. The trial court found that the plaintiff had not been able to prove that they are owner of the portion occupied by the pathway and further that the pathway existed for more than 20 years and was being used by the general public without any hindrance, therefore, the plaintiff was not entitled to any relief.6. According to Sri Saxena, the first appellate court without setting aside such finding recorded by the trial court has held that even if the finding of the trial court that there existed a pathway is accepted, the Municipal Board does not have right to make pakka road without the consent of the plaintiff. According to Sri Saxena, when the finding of the trial court that the plaintiff had no title over the land in question was not reversed by the first appellate court then there was no question for the Municipal Board to take consent of the plaintiff for making pathway into pakka road.7. From the aforesaid submission, the substantial question of law would be.“Whether, the lower appellate court having not reversed the finding of the trial court to the effect that the plaintiff had not proved that road was constructed on any portion of the school’s play ground then the direction issued by the first appellate court to seek permission of the plaintiff was clearly illegal.”8. While considering the aforesaid substantial question of law, a perusal of the trial court judgement indicates that plaintiff has failed to prove that the land where-from the pathway is passing was under the ownership of the plaintiff. While considering the aforesaid substantial question of law, a perusal of the trial court judgement indicates that plaintiff has failed to prove that the land where-from the pathway is passing was under the ownership of the plaintiff. The trial court further found that the pathway was being used by the general public for more than 20 years and therefore, it would be a public pathway.9. The first appellate court without setting aside such finding, has issued the direction that the Municipal Board ought to have taken consent of the plaintiff to make the kachcha pathway into Pakka road but it has not set aside the finding recorded by the trial court that the plaintiff has no title or ownership over that land. The first appellate court has also not set aside the finding that the pathway was being used by the public for more than 20 years.10. When the aforesaid finding of the trial court have not been set aside the direction issued to the Municipal Board to seek permission of the plaintiff for making the pathway into pakka road was clearly misplaced.11. For the aforesaid reason, the substantial question of law is answered in favour of the appellant and against the plaintiff-respondent. The judgement and decree dated 10.10.1978 passed in Civil Appeal No. 62 of 1973 is set aside. The second appeal is allowed.12. No order is passed as to costs.(Second Appeal allowed)_____________