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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Nagina Rai and Ors. – Petitioners
Versus
Nageswar Prasad Yadav, S/o. Sri Lalmuni Yadav - Respondent
RSA No.183 of 2009
Decided On : 19-04-2024
Encroachment - Land Dispute - Assam Town and Country Planning Act, 1959 - Section 13
Fact of the Case:
The respondent claimed to be a lessee of a plot of land owned by the Dibrugarh Municipal Board and alleged that the appellants had encroached on the land. The appellants contested the claim, stating that they had purchased the land and the respondent had encroached on their property. The trial court decreed the suit in favor of the respondent, granting mandatory injunction for removal of the appellants' construction and perpetual injunction restraining further construction.
Finding of the Court:
The trial court found in favor of the respondent, holding that the appellants had encroached on the respondent's land and violated building regulations. The court also held that the suit was not bad for non-joinder of necessary parties and dismissed the counter-claim of the appellants.
Issues: Cause of action, non-joinder of necessary parties, construction against building regulations, counter-claim maintainability, entitlement to decree, and any other relief
Ratio Decidendi: The court found that the respondent had established cause of action, the suit was not bad for non-joinder of necessary parties, and the appellants had violated building regulations. The court also found that the appellants had failed to prove their counter-claim.
Final Decision: The trial court decreed the suit in favor of the respondent and dismissed the counter-claim of the appellants. The first appellate court upheld the decision.
Heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Ms. S. Todi, learned counsel for the appellants. Also heard Mr. P.J. Saikia, learned senior counsel, assisted by Mr. K.D. Saikia, learned counsel for the respondent.
2. By filing this appeal under section 100 CPC, the appellants-defendants have assailed the first appellant judgment and decree dated 05.09.2009, passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 19/2008, thereby dismissing the appeal and affirming the judgment and decree passed dated 15.09.2008, passed by the learned Munsiff No. 2, Dibrugarh in Title Suit No. 23/2006 (previously registered as Title Suit No. 80/1999), by which the suit was decreed.
3. The appellants are the defendant nos. 1 to 3 in the suit filed by the respondent- plaintiff.
4. The appeal was admitted on the following substantial questions of law by order dated 23.12.2009:-
2. Whether presumed permission for construction of boundary wall under section 31 of Town and Country Planning Act, 1959 due to default of Board either to issue or reject entitled to make any construction in violation of the provisions of building bye laws and whether Courts below erred in not looking into it merely on the ground of presumed permission?
Case of the respondent in plaint:
5. The case of the respondent- plaintiff in the suit is to the effect that he was a lessee in respect of a plot of land morefully described in the Schedule-A of the plaint, which is owned by the Dibrugarh Municipal Board. It is claimed that the respondent- plaintiff was in possession of the said land since 1985 and with due permission, he had raised a pucca building on the western portion of the said land. It is projected that on measurement, it was found that the appellants had encroached 2 (two) feet of the Schedule-A land on the south-eastern boundary and then after taking permission from the Dibrugarh Development Authority, in April, 1999 the respondent had raised a pucca wall on the southern side of the suit land, by leaving 7 (seven) feet of his land on the south-eastern side in possession of the appellants without making any quarrel with him.
6. It was projected that on 01.07.1999, the appellants, who were in possession of some land outside the southern boundary of the Schedule-A land of the respondent raised a kutcha house with tin roof in such a manner that the kutcha wall and tin roof has projected and touched the pucca boundary wall of the respondent by 2 (two) feet inside his land and thereby rain water is inundating his land. It is pleaded that the respondent had not left the 5 (five) feet side margin as per the municipal law. It is also projected that as the appellants had not removed his kutcha construction and tin roof by 5 (five) feet from the boundary wall despite request and demand, the suit was filed. The prayers in the suit is to the effect that decree (i) of mandatory injunction be passed for removal of all the construction raised or extended by the appellants in the land described in Schedule-B; (ii) for permanent injunction restraining the appellants from raising any construction on the land described in Schedule-B and keeping the same vacant all the time; (iii) for cost of the suit; and (iv) for any other relief to which the respondent may be found entitled to.
Written statement-cum-counter claim of the appellants:
7. The appellants-defendants had contested the suit by filing their joint written statement. Apart from taking usual plea, it was denied that they had encroached 7 (seven) feet on the south-eastern boundary of the respondent’s land. It w
AI
When a Suit is withdrawn with liberty to file a fresh Suit on the same subject matter without imposing any terms/restriction, the plaintiff/s could very well institute a fresh Suit on the same subjec....
The admission of facts by defendants does not necessarily benefit the plaintiff if not conclusively established in support of the claims, particularly regarding land encroachment and right of access.
The court discussed the legal principles related to the jurisdiction of the court to interfere with concurrent findings of fact and law.
Point of Law : Defendants have come up in appeal not against the permanent prohibitory injunction granted against them but against the mandatory injunction goes on to show that their predecessor had ....
Concurrent findings of fact by lower courts should not be disturbed in a second appeal unless a substantial question of law arises, which was not applicable in this case.
A party can seek a permanent injunction without needing to declare title if there is no cloud over title and possession can be proved, even when facing encroachment claims.
A plaintiff must plead the precise area of the property in encroachment cases to establish ownership and encroachment claims; failure to do so undermines the case.
Concurrent findings of fact by the Trial Court and First Appellate Court are binding and cannot be interfered with under Section 100 of the CPC.
Appellate Court may permit additional evidence to be produced whether oral or documentary, if conditions mentioned in Order 41 Rule 27 are satisfied.
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