M.A. No. 3116/2010
16-7-10
Heard Shri B.L. Malviya, Advocate with Shri L.C. Chourasiya,
Advocate for the appellant on the question of admission.
This is an appeal under Order 43 Rule (1) read with Section 104
of the CPC challenging the order dated 26.6.2010 passed by the
learned Third Additional District Judge, Bhopal in Regular Civil Suit
No.198-A/2010 wherein the trial court has rejected the application for
grant of temporary injunction.
It is contended on behalf of the appellant that on 22.5.2002 the
appellant had applied to the Municipal Corporation for construction of
a house and water tank on the suit land. Even after expiry of period of
one month therefrom no response was received. There was neither
any objection nor consent on behalf of the Corporation on the
application dated 22.5.2002. Therefore, the inaction on the part of
the respondent shall be treated to be their consent for construction
and accordingly the appellant has raised construction on the suit land
and their possession is established.
On behalf of the plaintiff a copy of the registration certificate
under the M.P. Shops & Establishment Act, 1958 issued in the name
of plaintiff’s son Vikrant Sharma for the suit property was presented
before the trial Court. On scrutiny of the same, the trial Court has
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observed that the said certificate issued by the office of Municipal
Corporation, Bhopal did not bear the Khasra number of the disputed
land though the address was mentioned as “Opposite Lalghati
Campus Board Office Guest House, Bhopal”. Moreover, the son of
plaintiff, namely, Vikrant Sharma, was not a party to the case and
hence, the said certificate of registration for carrying out business on
the suit property has been disbelieved. Counsel appearing for the
appellant has failed to point out as to how the finding of the trial
Court in that regard is bad in law.
The trial Court in its order dated 26.6.2010 has held that it was
a government land and the appellant was only the encroacher on the
suit land. In the plaint it is stated that the appellant is in possession of
the suit land for last 37 years but the trial Court has come to the
conclusion that no documents were filed by the plaintiff to
substantiate and prove their possession over the suit land for last 37
years. Once the appellant is found to be an encroacher on the suit
land belonging to the government and prima facie no legal
possession is established by way of any concrete evidence then no
advantage of the construction raised by virtue of so-called tacit
consent can be claimed by the appellant.
In this reference, Section 294 of the M.P. Municipal Corporation
Act, 1956 are relevant wherein it is required that every person who
intends to erect or re-erect a building shall submit to the
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Commissioner an application in writing for approval of the site
together with a site plan of the land, ground plan, elevation and
section of the building etc. and such other particulars as may be
prescribed in the byelaws. It is seen that in the present case the
relevant map and document containing necessary particular etc. were
not filed, therefore, in my opinion the trial Court has rightly come to
the conclusion that there was no map and necessary document
produced by the plaintiff.
There is no prima facie case made out to justify the grant of
injunction in favour of the appellant.
In view of the aforesaid, I do not find any substance in the
appeal. The appeal is accordingly dismissed.
(R.K. GUPTA)
Judge
S/