Allahabad High Court

BASHIRUDDINversusNAGAR PALIKA PARISHAD MURADNAGAR GHAZIABAD THRU. EXE. ENG

Decided: 19 March 2026
Disposal: Allowed/Partly Allowed on merits
Bench: Y K SRIVASTAVA

Holding

The appeal is allowed; the earlier judgments are set aside and the appellant's suit for permanent injunction is decreed in his favour.

Summary

The appellant, Bashiruddin, filed a second appeal under Section 100 of the Civil Procedure Code challenging the dismissal of his suit for permanent injunction against the Nagar Palika Parishad, Muradnagar. The suit concerned three plots (Nos. 427, 428, 444) that the appellant claimed to own and possess, alleging that the respondent was interfering with his possession and construction. The trial court and the appellate court had held that the appellant was encroaching on an adjacent plot (No. 445) belonging to the Nagar Palika and on a nearby nala, and dismissed the suit. The High Court remitted the matter to the trial court to determine the exact location of the plots and whether the respondent was constructing on plot 445. The trial court found that the appellant's plots lay north of plot 445, that the appellant had not constructed on plot 445 or encroached the nala, and that his shops stood on his own land. Accepting these findings, the High Court set aside the earlier judgments and decreed in favour of the appellant, allowing the appeal.

Issues considered

Where exactly are Khasra Nos. 427, 428 and 444 situated in relation to plot No. 445?
Whether the Nagar Palika Parishad, Muradnagar is making construction over plot No. 445 or over the plots claimed by the appellant.

Legislation cited

Code of Civil Procedure, 1908 — s. 100, Order 41 Rule 25

Subjects

permanent injunction
property dispute
encroachment
civil appeal
second appeal
CPC
land ownership
municipal authority

Judgment

Court No. - 23

Case :- SECOND APPEAL No. - 671 of 2015

Appellant :- Bashiruddin
Respondent :- Nagar Palika Parishad, Muradnagar Ghaziabad
Thru. Exe. Eng
Counsel for Appellant :- Sunil Singh,K.R. Sirohi
Counsel for Respondent :- Manu Saxena

Hon'ble Rajiv Joshi,J.

Heard Sri Rahul Sripat, learned counsel for the plaintiff-
appellant and Sri Manu Saxena, learned counsel for the
defendant-respondent.

This second appeal under Section 100 of C.P.C. has been filed
against the judgment and decree dated 15.5.2015 passed by the
Additional District & Sessions Judge, Court No. 15 Ghaziabad
in Civil Appeal No. 63/2014 as well as decree dated 20.3.2014
passed by the Judge Small Cause Court/Civil Judge (Junior
Division) Ghaziabad in Original Suit No. 2361 of 2010.

It reflects from the record that plaintiff filed suit in respect of
plot nos. 427 measuring 0.1590 hectare, 428 measuring 19
Biswa and 444 measuring 0.4930 hectare situated at Village
Sarna Muradnagar, Pargana Jalalabad, Tehsil Modinagar. As per
the plaint case, the plaintiff is the owner and in possession over
the said plots but the respondents is interfering in his possession
and stopping from raising construction and therefore, the suit
for permanent injunction was filed restraining the defendant not
to interfere with the possession of the plaintiff and not create
any obstacle in raising construction.

The suit was contested by the respondent on the ground that
plot no. 445 belongs to Nagar Palika Parishad, Muradnagar,
Ghaziabad and they are raising construction over the same. It is
further averred in the written statement that in the garb of their
plot, the plaintiff was raising construction over the adjacent
Nala by encroaching the same. The trial court has dismissed the
suit of the plaintiff with the finding that the plaintiff was raising
construction over plot no. 445, which is adjacent to the plots of
the plaintiff and also over the Nala by encroaching the same.
The said finding so recorded by the trial court was affirmed by
the appellate court vide judgement and decree dated 15.5.2015.

During the pendency of the second appeal, this Court vide order
dated 11.4.2017 remitted the matter to the trial court in view of
provisions of Order 41, Rule 25 C.P.C. to decide two issues
framed thereunder. The two issues, which were remitted to the
trial court are as under:

"(i) Where exactly the Khasra No. 427 measures 0.1590 hectare
Khasra No. 428 measures Biswa and Khasra No. 444 measures
0.4930 hectare are situated and where plot no. 445 is situated:
and

(ii) Whether the Nagar Palika Parishad, Moradnagar-
respondent herein is making construction over the plot no. 445
or the plots claimed by the plaintiff."

On the said two issues, a finding was recorded by the trial court
to the effect that plot nos. 427, 428 and 444 are situated towards
north side of the plot no. 445 and over plot nos. 427, 428 and
444, there are shops and with regard to the second issue, a
finding was recorded that in the plot no. 445, the plaintiff is not
raising any construction.

In view of the finding, which was recorded by the trial court, it
is apparent that the plaintiff is not raising any construction over
the land belongs to Nagar Palika Parishad i.e. plot no. 445 and
also not encroaching any land of Nala and road, which belongs
to them. It is further evident from the finding that plot no. 427,
428 and 444 are belongs to plaintiff over which his shops are
standing.

Learned counsel for the parties have no objection to the said
findings are accepted and the findings as recorded by the court
below be set aside.

In view of the said matter, the appeal is allowed. The judgment
and decreed dated 15.5.2015 passed by the Additional District
& Sessions Judge, Ghaziabad in Civil Appeal No. 63/2014 as
well as judgment and decree dated passed by the Judge Small
Cause Court/Civil Judge (Junior Division) Ghaziabad in Suit
No. 2361 of 2010 are hereby set aside and the suit of the
plaintiff stands decreed.

Order Date :- 13.12.2018
Noman

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