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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.16 OF 2017
1. Union of India,
Through Secretary, Railway Ministry,
New Delhi
2. General Manager,
Central Railway, Chhatrapati Shivaji
Terminus, Central Railway, Mumbai
3. Junior Engineer (C.I. Works),
Central Railway, Ballarpur,
Tah. Ballarpur, Dist. Chandrapur. ... Appellants.
-vs-
Jakar Ali s/o Mansoor Ali,
aged about 40 years, Occ. Labour,
R/o Jalnagar Ward, Chandrapur,
Tah. & Dist. Chandrapur.
Since dead represented by L.Rs.
1. Sahnaj wd/o Jakar Ali,
Aged about 44 years,
Occ. Nil,
2. Master Sabir s/o Jakar Ali,
Aged about 11 years,
3. Jaheer Ali, s/o Jakar Ali,
Aged about 9 years.
4. Hasim Ali, s/o Jakar Ali,
Aged about 7 years.
5. Sonam d/o Jakar Ali,
Aged about 04 years.
Nos. 2 to 5 through their natural guardian
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Respondent No.1.
All R/o Ward No.2, Sai Nagar,
Besides B.S.N.L. Office, Near Railway
Station, Chandrapur, Tah. & Dist. Chandrapur.
6. Nazul Officer,
Office of District Collector,
Chandrapur -448401. ... Respondents.
Shri N. P. Lambat, Advocate for appellants.
Respondent Nos.1 to 5 served.
Shri K. R. Lule, Assistant Government Pleader for respondent No.6.
CORAM : A. S. CHANDURKAR, J.
DATE : December 20, 2017 Oral Judgment :
The original defendants against whom a decree has been passed granting declaration that the notice dated 22/07/2002 issued by them was illegal and also restraining them from disturbing the possession of the original plaintiff or from demolishing his house have challenged the same in this second appeal.
2. It is the case of the original plaintiff that he is the owner of a house property situated at Nazul Mohalla Sheet No.11 of plot No.3/1. On the said plot he has constructed a house. The land in question was purchased on 05/01/2002. According to the plaintiff, the defendants claim that the land in question belonged to the Railway Authority and that the plaintiff had committed encroachment. The defendant No.3 had issued a ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 ::: 928-J-SA-16-17 3/8 notice on 22/07/2002 to the plaintiff calling upon him to remove the encroachment. Being aggrieved by issuance of this notice, the aforesaid suit for declaration that the notice dated 22/07/2002 was illegal along with prayer for permanent injunction came to be filed. Alongwith the suit the plaintiff also filed an application for grant of temporary injunction.
3. The defendants filed reply to the application for temporary injunction. According to them the property in question vested with the Railway Authority and that the plaintiff had committed encroachment. The plot in question was plot No.4 and not plot No.3/1 as contended by the plaintiff. It was therefore stated that the injunction was not liable to be granted to the plaintiff.
4. After considering the entire evidence on record, the trial Court recorded a finding that the plaintiff had not committed any encroachment. Plot No.3/1 belonged to the Nazul Department while plot No.4 belonged to the Railway Authority. It was further held that construction of the house was on Plot No.3/1 and the plaintiff had a legal right to occupy the house in question. The notice as issued was held to be illegal. The suit was accordingly decreed. The first appellate Court after re-appreciating the evidence confirmed these findings and dismissed the appeal. Being aggrieved the present second appeal has been filed. ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 :::
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5. In the present appeal this Court on 08/03/2017 directed the appellants to join the Nazul Department as party respondent in the appeal. The said department was directed to file an affidavit in regard to plot No.4. Pursuant thereto an affidavit has been filed by the Tahsildar dated 18/08/2017 in which it has been stated that plot No.3/1 stands in the name of Nazul Department while plot No.4 stands in the name of the Railway Authority. After this affidavit was filed, the following substantial question of law came to be framed :
" In the light of specific pleadings in paragraph 8 of the written statement along with the affidavit dated 18/08/2017 filed by the Tahsildar, Chandrapur, whether the notice dated 22/07/2002 issued by the present appellant can be said to be bad in law ? "
6. Notice for final disposal was accordingly issued on the above substantial question of law. Despite service and grant of opportunity, the legal heirs of the original plaintiff have not chosen to contest the proceedings Shri K. R. Lule, learned Assistant Government Pleader has appeared for the added respondent No.6.
7. Shri N. P. Lambat, learned counsel for the appellants submitted that in paragraph 8 of the reply to the application for temporary injunction it was specifically averred that the encroachment in question was not on plot No.3/1 which belonged to the Nazul Department but it was on plot No.4 ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 ::: 928-J-SA-16-17 5/8 which belonged to the Railway Authority. Notice had been issued by the Railway Authority to the plaintiff as well as various encroachers. The original plaintiff could not prove his entitlement. In view of the subsequent affidavit dated 18/08/2017 this stand of the appellants has been justified and it is now clear that plot No.4 on which the encroachment has been committed belongs to the Railway Authority. The notice at Exhibit-60 rightly called upon the plaintiff to remove his structure. Other evidence on record was not sufficient to hold that this notice issued by the appellants herein was illegal. The plaintiff did not lead any evidence to indicate that the construction was made with due permission of the Railway Authority. Both the Courts committed an error in holding that the land in question belonged to the Nazul Department and therefore the notice was bad in law. He thus submitted that the suit was liable to be dismissed. He also pointed out that though applications were made for appointment of a Commissioner, the same were rejected by the trial Court as well as by the first Appellate Court.
8. As noted above there is no appearance on behalf of the legal heirs of the original plaintiff despite due service. The learned Assistant Government Pleader has appeared for respondent No.6 and he submitted that as per affidavit dated 18/08/2017 Plot No.3/1 stood in the name of Nazul Department and Plot No.4 belongs to the Railway Authority.
With the assistance of learned counsel for the parties, I have ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 ::: 928-J-SA-16-17 6/8 perused the records of the case and I have given a due consideration to their respective submissions.
9. In the plaint the suit property has been described to be situated on plot No. 3/1 at Mouza Jatpura. This was denied by the defendants and it came up with the case that the encroachment was not on Plot No.3/1 which was the land belonging to Nazul Department but the encroachment was on Plot No.4 that was owned by the Railway Authority. In the light of affidavit dated 18/08/2017 filed by Tahsildar, Chandrapur, it is now clear that Plot No.3/1 belongs to Nazul Department while Plot No.4 belongs to the Railway Authority. The stand of the original plaintiff is therefore falsified and the stand taken by the appellants herein stands fortified. It is thus clear that the original plaintiff had erected the structure on Plot No.4 that belongs to the Railway Authority.
10. According to the original plaintiff, he had purchased the suit property from one Hiraman Dhobe. Said Hiraman Dhobe had purchased this property from one Ramesh Dhengle on 14/01/1992. The plaintiff examined said Ramesh Dhengle at Exhibit-50. In his cross examination this witness admitted that when the construction was carried out the land belonged to the Railway Authority. That witness could not place on record any document of title in his favour. The witnesses examined by the defendants justified the ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 ::: 928-J-SA-16-17 7/8 issuance of notice dated 22/07/2002 on the count that the land in question belonged to the Railway Authority and that there was no permission granted to the original plaintiff to make the construction.
11. On considering the entire documentary material on record and in the light of the affidavit dated 18/08/2017 submitted on behalf of the Tahsildar, contents of which have been uncontroverted, it is clear that the original plaintiff has failed to show his entitlement to the construction made by him. The entire premise that the construction was made on plot No.3/1 have been falsified. The notice at Exhibit-60 dated 22/07/2002 therefore cannot be said to be illegal or having been issued with regard to property that does not vest in the Railway Authority. On this count the judgment of the trial Court as well as the first appellate Court cannot sustained.
12. The substantial question of law as framed is answered by holding that in the light of specific pleadings in paragraph 8 of the written statement along with the affidavit dated 18/08/2017 filed by the Tahsildar, Chandrapur, the notice dated 22/07/2002 cannot be said to be bad in law. As a result of the answer to the substantial question of law, the judgment of the trial Court in R.C.S. No.35/02 dated 08/12/2006 and judgment of the first appellate Court in R.C.A. No.41/2007 dated 29/12/2015 are quashed and set aside. The suit filed by the original plaintiff stands dismissed. The ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 ::: 928-J-SA-16-17 8/8 second appeal is allowed in aforesaid terms with no order as to costs.
The respondent Nos.1 to 5 are granted time of two months from today for complying with the notice dated 22/07/2002.
JUDGE Asmita ::: Uploaded on - 01/01/2018 ::: Downloaded on - 02/01/2018 23:33:35 :::