JUDGMENT (ORAL)

Lok Pal Singh, J.—This first appeal, preferred under Section 96 of Code of Civil Procedure, is directed against the judgment and decree dated 22.10.2019 and 30.10.2019 passed by 2nd Additional Civil Judge (Senior Division), Dehradun in Original Suit No.56/2010 (new original suit no.234/2017), whereby the suit filed by the respondent/plaintiff for a relief of prohibitory injunction against the appellant/defendant has been decreed and the appellant/defendant has been restrained from demolishing the suit property without due process of law.

2. Brief facts of the case are that the respondent/plaintiff instituted a suit against the appellant/defendant for a relief of prohibitory injunction stating therein that the plaintiff is the recorded owner of the suit property being khata no.90, khasra no.68A, situated at Mauja Dehrakhas, Pargana Central Doon, District Dehradun. In the west side of the suit property, there were old tin sheds constructed which were about 100 years old and by demolishing such tin sheds, two pucca shops were constructed having 34 sq.mtrs. area. On 08.02.2020 at about 11.30 am, some officials/employees of the municipal corporation came at the place of suit property along with bulldozer and tried to demolish the construction raised by the respondent/plaintiff. Due to the outrage of the people, the employees of the defendant went away from there however while going they threatened to demolish the suit property. Appellant/defendant contested the suit and filed the written statement. In the written statement, it is stated that non Z.A. khata khatuni no.90 is recorded as Abadi which comes within the territorial jurisdiction of Nagar Nigam Dehradun and before creation of Nagar Nigam the suit property belongs to Nagar Palika Dehradun. Appellant /defendant denied the plaint averment that land pertaining to khata no.90 khasra no.68A is recorded in the name of the respondent/plaintiff. It was also stated that the documents produced by the plaintiff are relevant for title of the suit property. It is contended that the plaintiff has raised illegal construction.

3. On the pleadings of parties, trial court framed the following issues:-

(i) Whether the plaintiff is the owner and is in possession of the suit property?

(ii) Whether the suit is bad due to non-joinder of necessary parties?

(iii) Whether the suit is not maintainable in view of provisions of U.P. Urban Planning and Development Act?

(iv) Whether the suit is entitled to get the relief sought?

4. In support of plaint averments, the plaintiff got examined PW1 Manoj Kumar Bhatt, PW2 Vilochan Singh Rawat and PW3 Vijay Singh. In documentary evidence, consolidation maps, certified copy of khatauni and photographs of the dispute property were filed by the plaintiff. On behalf of the defendant, DW1 Chandra Prakash Ahuja was examined. In documentary evidence, the defendant filed property register, copy of map, power of attorney, etc.

5. After hearing the learned counsel for the parties and on perusal of record, on issue no.1 and 4, the trial court recorded finding that the plaintiff is recorded owner and is in possession of suit property and if it is assumed that the plaintiff has raised illegal construction over the suit property, in that event also, the defendant or the M.D.D.A. has got no right to demolish the illegal construction without following the due procedure of law. Issue no.2 and 3 were also decided in favour of the plaintiff and, accordingly, by judgment and order dated 22.10.2019, the trial court decreed the suit of the plaintiff for a relief of prohibitory injunction and the appellant/defendant was directed not to demolish the construction raised by the plaintiff over the suit property without adopting due process of law.

6. I have heard learned counsel for the parties and perused the entire material available on record.

7. The core issue which arises for consideration of this Court is as to whether the plaintiff/respondent is in ownership