Allahabad High Court
Anil Kumar vs Nagar Nigam Jhansi on 22 March, 2013
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- SECOND APPEAL No. - 272 of 2013
Petitioner :- Anil Kumar
Respondent :- Nagar Nigam Jhansi
Petitioner Counsel :- M.K. Gupta
Hon'ble Rajes Kumar,J.
The appellant was the plaintiff in the suit. The suit was filed for permanent prohibitory injunction being suit no. 374 of 2006 in respect of property measuring 116.13 Sq. mts. shown as A.B., C. and D as a suit property which was claimed to be a part of Araji no. 2940/1 against the respondent on the ground that the said suit property has been purchased by him from Brij Mohan Gupta, a recorded tenure-holder vide sale deed dated 13.3.1990. The suit has been filed when the respondent started interfering. The trial court vide order dated 27.7.2010 has decreed the suit. On the basis of the revenue record as well as on the basis of the information received under the Right to Information Act from the respondent, the trial court has recorded the finding that Araji no. 2940/1 is not recorded in the record of Nagar Nigam and is not a property of the Nagar Nigam. Further it has been held that it is not a public property. Against the said order, the respondent filed appeal which has been allowed by the impugned order.
Learned counsel for the appellant submitted that the decision of the appellate court is based on the documents which have been filed for the first time by the respondent along with an affidavit which has not been filed before the trial court and mainly on the basis of the decision of this Court in the case of Iqbal Ahmad and others Vs. Deputy Director of Consolidation, Deoria and others, reported in 2006 (4) AWC 3865l, while the said decision has been clarified by the same Judge vide order dated 30.8.2007, reported in 2008 (1) AWC 630, wherein in para 7 (1) it has been clarified that the earlier decision dated 25.2.2005 is not applicable to the land within the limits of municipalities, cantonment, notified areas and town areas being not covered by U.P. Z.A & L.R. Act.
Admittedly, the land in dispute is situated in the municipal area. The matter requires consideration.
Admit the appeal on the following substantial questions of law :
1- Whether the judgment of the lower appellate court which proceeds on the assumption that the suit property is governed by provision of U.P. Zamindari Abolition & Land Reforms Act, 1952 is manifestly illegal and is not sustainable in law?
2- Whether the lower appellate court had erred in relying upon the documents filed in appeal along with the affidavit 14C, though the documents were photocopies and were neither proved in accordance with law nor are admissible in evidence?
3- Whether the lower appellate court erred in ignoring long standing entry in the name of predecessor-in-title of the plaintiff-appellant?
4- Whether the lower court had carved out a new case in holding that the suit property is part of Araji No. 2940/1?
5- Whether in the facts and circumstances of the instant case, the identity of the suit property being part of Plot No. 2940/1 was fully established and lower appellate court erred in holding that the appellant failed to prove the said fact, is wholly illegal and perverse?
Issue notice to the respondent. The appellant may take steps to serve the respondent by registered post.
Until further orders, the parties are directed to maintain status-quo in respect of the property in dispute.
Order Date :- 22.3.2013
OP
