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High Court Of Madhya Pradesh
A. K. SHRIVASTAVA
BHAGCHAND - Appellant
Versus
ADMINISTRATOR, municipal CORPORATION, INDORE - Respondents
Second Appeal 385 Of 1990
Decided On : 03/18/2005
possession - Municipal Corporation Act - Section 403, Transfer of Property Act - Section 105, Order 39 Rule 1 and 2, CPC - Ex. P-1, Ex. P-29, Ex. P-30, Ex. P-37, Ex. D-4c, Ex. D-5c - The court discussed the possession of the plaintiff, the intention of the parties, and the resolution of the Public Works Committee and the Mayor, and concluded that the plaintiff is entitled to get allotment of the pacca-shop under the policy and resolution of respondent No. 1.
Fact of the Case:
The plaintiff filed a suit for declaration, mandatory injunction, and possession of a shop, claiming possession of a Gumti and entitlement for the allotment of the shop. The trial court decreed the suit, but the appellate court dismissed it, leading to this second appeal.
Finding of the Court:
The court found that the plaintiff was in possession of the Gumti and entitled to the allotment of the shop under the policy and resolution of respondent No. 1. The court also rejected the contention that the order passed in civil revision would operate as res-judicata.
Issues: The issues involved the possession of the plaintiff, the nature of the document Ex. P-1, the resolution of the Public Works Committee and the Mayor, and the impact of the order passed in civil revision on the present suit.
Ratio Decidendi: The court's decision was influenced by the intention of the parties, the resolution of the Public Works Committee and the Mayor, and the rejection of the contention that the order passed in civil revision would operate as res-judicata.
Final Decision: The appeal was allowed, the judgment and decree passed by the First Appellate Court were set aside, and the judgment and decree passed by the trial Court were restored by decreeing the suit of the plaintiff.
( 2 ) A suit for declaration, mandatory injunction and for possession has been filed by the plaintiff who is appellant here in this appeal. According to the plaintiff, he is in possession of a shop situated in a Gumti for several years. Defendant No. 1 gave plot No. 6 to defendant No. 2 on lease so that defendant no. 2 may construct a Gumti and may open the Co-operative Store of Municipal employees Union. Thereafter defendant No. 2 constructed the Gumti on the said land. Defendant No. 2 did not open the Co-operative store and the said Gumti remained vacant up to the year 1961. At the relevant point of time, the President of Union (defendant No. 2) was Narain Singh who in December, 1961 Inducted plaintiff as sub-tenant at trie rate of Rs. 35/- rent per month apart from payment of the tax. The plaintiff thereafter Started carrying on business of public typing and drafting institute in the said Gumti and the possession of the said gumti remained with him.
( 3 ) DEFENDANT No. 1 sent notice to defendant No. 2 terminating the tenancy and the said notice was served on defendant No. 2 on 11-5-1966. The said notice terminating the lease was sent on the ground that defendant no. 2 has inducted plaintiff as subtenant in the said Gumti. The plaintiff against the said notice of defendant No. 1 filed art appeal (Appeal No. 441/66), before the Appellate Committee which was dismissed on 25-8-69. However, after the dismissal of the appeal, defendant No. 1 did not take any action against defendant No. 2.
( 4 ) DEFENDANT No. 1 framed a scheme to construct the Pacca shops and according to the scheme the persons who were possessing the Gumti on the M. G. Road, it was decided, to allot the shops to them and the shop will not be allotted to those persons who were not possessing the Gumtis. Accordingly the plaintiff since he was possessing Gumtt, Submitted application for the allotment of the shop and also deposited the requisite amount. It has also been pleaded by the plaintiff in para 8 at his plaint that the Municipal Corporation also gave shops to gome other persons who were sub-tenant whose names are referred in this para-graph. According to him, since he was also inducted as sub-tenant by defendant No. 2, is also entitled for the allotment of the shop.
( 5 ) THE Municipal Corporation instead of giving the shop to the plaintiff, directed to allot the shop to defendant No. 2. Initially the suit was filed for declaration, and mandatory injunction, however, during the pendency of the suit since Gumti was removed in order to widen the. M. Q. road of Indore town. The plaintiff thereafter by amendment prayed for the allotment of shop. the possession of which has been given to defendant No. 2. The plaintiff also prayed decree of possession against defendants.
( 6 ) THE defendants resisted the suit by filing written statement. In nut-shell it has been contended in the Written statement that the plaintiff is not having any right, title and interest in the Gumti in question since his possession was unauthorised and he was trespasser and, therefore, he is not entitled for the allotment of any shop nor he is entitled to the possession of the shop which has been allotted to defendant No. 2. It has been prayed that suit be, dismissed.
( 7 ) THE Trial Court after framing issues and recording the evidence declared that plaintiff is entitled to get allotted shop No. 35/555 in his name and is also entitled to obtain possession of the said shop from the defendants. The trial Court further declared that the suit Shop No. 35/555 which has been allotted by defendant No. 1 to defendant No. 2 by allotment order No. 243 dated 3-6-71 is illegal and contrary to law, the trial court further decreed the suit of mandatory injunction directing defendant No. 1 to execute the lease deed in favour of plaintiff by obtaining vacant possession of
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