Encroachment on municipal land without legal rights cannot be protected by injunction and judicial proceedings cannot be used to perpetuate a wrong committed by encroachers.

1. This second appeal challenging the judgment and order of first appellate court dated 21.10.1995 passed in First Appeal No. 83/1980 was filed by the Municipal Board, Vikas Nagar in the Allahabad High Court, where such appeal no. 102/1996 was admitted on 31.1.1996 for hearing. I assume that such appeal was admitted on all substantial questions of law, which were suggested in the memo of appeal by the learned Counsel of the appellant and I would like to reproduce the same at later stage. After carving out of this province, such appeal stood transferred to this Court and was allotted the new number, as indicated above. Since then for one reason or the other, it could not be decided.

2. Having heard learned Counsels for the parties extensively, I feel that the effective and convincing adjudication of the controversy between the parties would not be possible until the chequered history of the facts is surfaced ever since the litigation started way back in 1972.

3. I think that in exercise of the powers vested in Section 103 of the Civil Procedure Code, the High Court is competent to take up for consideration even the issues of facts during the course of hearing in the second appeal.

4. In the very beginning, Original Suit No. 268/1972 was instituted by late Sri Laxmi Chand Gupta (father of respondents no. 1 and 2) against the Municipal Board, Vikas Nagar seeking the relief of permanent injunction restraining the defendants and their employees from constructing any street through the property of the plaintiff, which is more fully described in the schedule given at the foot of the plaint. In such schedule, the property was indicated as “a plot of land forming part of Khasra No. 2279 situated in Mauja Enfield Grant Pargana Pachwa, Dehradun bounded as below:

On the North— Hospital Road

On the South— Property of the defendant

On the East— Property of the District Board School

On the West— Road”

5. It appears from the pleadings of the plaintiff that he was denying the existence of any public street in the east of such property and averred that the whole of adjoining area belonged to Maharaja of Sirmaur (Nahan) and he was in peaceful possession of such plot of land ever since 1951 and the defendant public body was striving to construct a public street towards the east of the plot of the land whereon the plaintiff was claiming the peaceful uninterrupted possession since 1951 and he also intended to show as if he has acquired the title rights on the basis of adverse possession. Such suit was dismissed on merits on 30.9.1974 by the learned Munsif Mr. G.S. Pande, whereagainst Civil Appeal No. 86/1974 was presented by Mr. Laxmi Chand Gupta and such appeal was allowed decreeing the suit on 18.3.1975 by the First Additional Civil Judge Sri K.D. Shahi.

6. Learned appellate court reproduced the statement of the witnesses and also mentioned that the title deed of plaintiff Ex. 1 was on the record. He had been sold the plots no. 130 and 131 and also the “dandi” alongside the street facing the east. Thus the plaintiff had been transferred some land in the east of plots no. 130 and 131, which is admittedly “dandi”.

7. It appears that by the time the first appellate court rendered its judgment dated 18.3.1975, two sale deeds dated 29.12.1962, which Mr. Laxmi Chand Gupta produced pertaining to two plots each measuring 45 x 90 and 45 x 90 plus eastern Dandi were available on the record. So, the total area of the plot was 8100 sq. ft. plus some area of “dandi” towards the east of these plots. I have gathered the date of these two sale deeds in the first appellate court judgment dated 21.10.1995 rendered by the Additional Civil Judge (Sr. Div.) Mr. Subhash Chandra (in the appeal file no. 83/1980, which shall be referred later and such judgment is also impugned one before this Court in this second appeal).

8. Learned Judge Mr. Shahi has also reproduced the statement of DW Mr. Satendra Singh which shows that these plots were being used by Mr. Laxmi Chand Gu