Union Of India, Through ... vs Jakar Ali S/O. Mansoor Ali (Dead), ...
2017 Latest Caselaw 9856 Bom

928-J-SA-16-17                                                                     1/8


                 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

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.

928-J-SA-16-17 4/8

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

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

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

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

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