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Zila Parishad, Lucknow Vs. Ram Khelawan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Civil Appeals Nos. 71 to 77, 81, 82, 84 to 87, 89 to 94, 96 and 97 of 1957
Judge
Reported inAIR1976All209
ActsLimitation Act, 1908 - Sections 28 - Schedule - Articles 142 and 146A; Uttar Pradesh District Boards Act, 1922 - Sections 95 and 146
AppellantZila Parishad, Lucknow
RespondentRam Khelawan and ors.
Appellant AdvocateK.N. Misra, Adv.
Respondent AdvocateAkhilesh Sahai, Adv.
DispositionAppeal allowed
Excerpt:
limitaion - interpretation - article 146-a of limitation act, 1908 - meaning of 'road' and 'dispossessed' - road includes land adjoining actual constructed road kept apart for purposes of public road - property vests in district board by operation of law - property comes in possession of district board the moment management is taken over by it - construction continuing on land adjoining road prior to taking over of management - district board is dispossessed of property when it takes over management. - .....notice. according to the district board, the constructions in dispute were encroachments on the public road and were liable to be removed. other pleas taken in the case by the parties are not relevant for the present appeals.3. the trial court held that the constructions in each case were more than thirty years old and accordingly the plaintiffs had in each case acquired title by reason of section 28 of the indian limitation act and as a consequence the constructions were not liable to be removed. on this finding it held that the notices issued by the dist. board were unauthorised and could not be given effect to, the suits were accordingly decreed. the defendant went up in appeal against the decree passed in each suit. the appellate court dismissed all the appeals on the finding that.....
Judgment:

Hari Sarup, J.

1. These appeals have been filed by the District Board, Luck-now, against the plaintiffs in various suits giving rise to these appeals. The plaintiffs had instituted different suits for an injunction to restrain the defendant, District Board, from removing the constructions in dispute and from prosecuting the plaintiffs for not removing the constructions in pursuance of the notice issued by the District Board under Section 95 of the U. P. District Boards Act. An injunction was also sought to restrain the defendant from issuing similar notices in future regarding the constructions in dispute.

2. The case of the plaintiffs in each suit was that the constructions standing on the land in suit were about eight years old and were thus not liable to be removed under Section 95 of the U. P. District Boards Act, Their contention was that by reason of Section 28 of the Indian Limitation Act the right of the District Board had been extinguished and accordingly the buildings could not be deemed to be encroachment on any land belonging to the District Board. The case of the defendant on the other hand was that the right of the District Board to remove the constructions still subsisted and the notice Issued under Section 95 of the Act was a valid notice. According to the District Board, the constructions in dispute were encroachments on the public road and were liable to be removed. Other pleas taken in the case by the parties are not relevant for the present appeals.

3. The trial court held that the constructions in each case were more than thirty years old and accordingly the plaintiffs had in each case acquired title by reason of Section 28 of the Indian Limitation Act and as a consequence the constructions were not liable to be removed. On this finding it held that the notices issued by the Dist. Board were unauthorised and could not be given effect to, The suits were accordingly decreed. The defendant went up in appeal against the decree passed in each suit. The appellate Court dismissed all the appeals on the finding that the constructions were more than thirty years old and were not liable to be removed. Against these decrees the present appeals were filed by the District Board.

4. The only point to be determined in these appeals is whether theplaintiffs had acquired title by reason of Section 28 of the Indian Limitation Act so as to make the constructions immune from demolition or removal by the District Board under the U. P, District Boards Act, The appellate Court's finding about the length, of possession having not been found to be specific by the learned Judge who had heard the appeals earlier, the following issue was remitted to the Court below for a finding:

'When the encroachment in respect of which notice was issued by the District Board under Section 95 of the U. P. District Boards Act, 1922 was made by the concerned plaintiff?'

The finding returned by the Court below is to the effect that in each case the constructions were of more than thirty years standing. We have thug to proceed on the basis that on the date of issue of notice under Section 95 of the Act the constructions sought to be removed were more than thirty years old.

5. Section 28 of the Indian Limitation Act provides:

'At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished.'

6. The notice in the present cases had been given by the District Board, The question will be whether the District Board's right to institute a suit for possession had lapsed by reason of the period of limitation prescribed in the Limitation Act, The relevant Article according to the appellant applicable to such a suit is Article 146-A in the first Schedule to the Indian Limitation Act, 1908. Article 146-A runs as under:

'By or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession.'

Learned counsel for the plaintiffs-respondents, however, contended that Article 146-A is not applicable to the present case as it is not a case in which the District Board had been, dispossessed by the plaintiffs or where the District Board had discontinued the possession. The contention is that because the possession of the plaintiffs had continued since before the District Board came into the picture, it cannot be held that the District Board has been dispossessed. The facts In respect of this matter are that the road in-itially belonged to the Government. In 1922 the District Board, Lucknow, wasconstituted. In 1924 the maintenance of the road was transferred to the District Board. Since then the District Board is maintaining this road on the part of which the encorachment exists.

7. Section 146 of the U. P. District Boards Act provides for the vesting of the porperty in the District Board. The relevant portion of the Section runs as under:

'Subject to any special reservation made by the State Government, all property of the nature specified in this section and situated within the district shall vest in and belong to the board and shall with all other property which may become vested in the Board be under its direction, management, and control and shall be held and applied for the purposes of this Act, that is to say-

(a) .....

(b) all public roads, which have been constructed or are maintained out of the district fund, and the stones and other materials thereof, and also all trees, erections, materials, implements and things provided for such road;

(c) .....'

The finding of the trial Court is that the encroachments are on the public road. The lower appellate Court has also proceeded on the basis that the encroachments are on the public road. It is not denied that the road is maintained out of the district funds. The road thus will lie deemed to be vesting in and belonging to the District Board since the date of the transfer of the duty to maintain the road to the District Board, viz., May 27, 1924.

8. Learned counsel for the plaintiffs, however, contends that the land on which the building stands cannot be deemed to be part of the public road because it is away from the constructed road. The case of the District Board was that the road extended upto 50 feet on either side of the centre of the road. The Trial Court after considering the evidence in the matter has recorded the finding thus:

'This obviously means that the house fn question have consciously (unconsciously?) encroached upon the land of the District Board which is in the shape of the public road.'

The site-plan about the road filed in the case has been relied upon by the trial court in arriving at this finding. This finding has not been upset by the lower appellate Court. As held in Anukul Chan-dra Chakravarti v. Chairman of the DaccaDistrict Board : AIR1928Cal485 a wider expression of public road should be given in Article 146-A of the Indian Limitation Act. It was held in that case:

'I am of opinion that 'road' in that Article (Article 146-A) includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road.''

9. Thus the land adjoining the actual constructed road if kept apart for the purposes of the public road though not constructed in the shape of road, will also be a public road for the purposes of Article 146-A of the Indian Limitation Act. On the findings of the Courts below, thus, the land in dispute must be held to be part of the public road for purposes of Article 146-A of the Indian Limitation Act.

10. In support of his contention that the District Board should have been dispossessed actually by the plaintiffs, learned counsel for the plaintiffs has relied On a decision of the Calcutta High Court in Dhajadhari Ghosh v. Union Board of Kendragoria : AIR1942Cal151 . In that case it was held that because the defendant was in possession of the property since before the Union Board of Kendragoria was constituted, the Board could not be deemed to be dispossessed within the meaning of Article 146-A of the Limitation Act. With great respect I am unable to agree with the opinion of the learned Judges in that case. The word 'dispossessed' normally means dispossession of a person from his actual possession but in view of the different language employed in Arts. 142 and 146-A in the first Schedule to the Limitation Act such a meaning is not necessarily to be attached to the word 'dispossession' in Article 146-A. Article 142 uses the words 'while in possession of the property, has been dispossessed or has discontinued the possession', while Article 146-A does not contain the crucial words 'while in possession of the property'. In my opinion this makes a distinction for the interpretation of the word 'dispossession' in Article 146-A. It is by operation of law that the property gets vested in the District Board and it is by operation of law that a District Board comes into possession of the property as soon as the management vested in the District Board by virtue of Section 146 of the U. P. District Boards Act. As soon as the management is taken over by the District Board, the public road gets vested in the District Board and the possession under law becomes that of the District Board with aright to get encroachments removed. Sections 95 of the U. P. District Boards Act gives the District Board a right to ask by notice the person who has encroached upon the public road to remove the constructions. If the construction is continuing from before, the District Board will be deemed to be dispossessed immediately on the road getting vested in it. The dispossession will be automatic and simultaneous with the road coming under the Board's management. For purposes of Article 146-A of the Limitation Act, the District Board must be deemed to be dispossessed the moment it gets entitled to possession. It could not be deemed to be dispossessed at any prior moment of time.

11. Learned counsel for the plaintiffs, however, contended that the period of limitation for purposes of Article 146-A must be deemed to commence from the date of dispossession of the Government and not from date of vesting of the road in the District Board. In support of this contention learned counsel relied on a decision of the Calcutta High Court in Annada Mohan Roy Chowdhury v. Kina Das : AIR1924Cal394 . It was a case in which a private person had purchased the property from the government. It was held that the plaintiff was not entitled to get the benefit of Article 149 of the Indian Limitation Act as the suit had not been instituted by the Government, and secondly because the word plaintiff included the plaintiff's pre-decessor-in-title the limitation must run from the date of dispossession of the Government. The Court in that case had relied on the definition of word plaintiff contained in Section 2, Sub-section (8) of the Indian Limitation Act, which provides that the 'plantiff' includes any person from or through whom a plaintiff derives his right to sue.

12. In the present case the District Board does not derive right to sue from or through the Government. The right is conferred on the District Board by the statutory provisions of the U. P. District Boards Act. The property gets vested in the District Board by operation of law contained in Section 146 and its right to get the constructions removed arises by virtue of the provisions of Section 95 of the Act. They are the rights conferred on the District Board by the statute that gives it the authority to demand possession and clearance of land. As the Board does not derive title to claim possession from the predecessor-in-title, the word 'plaintiff' cannot include theGovernment in the present case. Further, it is significant to note that though Article 142 refers to the word 'plaintiff' in the first column and Article 144 in third column, Article 146-A does not refer to plaintiff. Article 146-A provides for the dispossession of the local authority and a suit by or on behalf of the local authority. The omission of the word 'plaintiff' from Article 146-A also indicates that the dispossession of the local authority alone had to be seen and the earlier dispossession is not relevant for counting limitation for the suit.

13. If this were not so result may follow which the law may never have intended. If the plaintiff was in possession for about 40 years before the incorporation of the District Board, it could not have perfected title as the limitation for a suit by the Government was 60 years. The law could, therefore, vest the public road on the date of the management coming in the Board as the road still continued to vest in the Government. If it were to be accepted that the period of limitation will commence running from the date of first dispossession it would mean that the District Board will never be able to institute the suit as the period of 30 years would have already expired before its constitution or vesting of the public road in the District Board. This could not have been the intention of law as it would frustrate the very vesting of the public road in the District Board by operation of law contained in Section 146 of the U. P. District Boards Act.

14. The limitation thus for a suit under Article 146-A even in a case where the defendant is in possession since before the vesting of the public road in the District Board will be the date on which the public road gets vested in the District Board.

15. Admittedly, the notice under Section 95 was issued within thirty years of the date of vesting of the land (public road) in the District Board. The title of the District Board could not, therefore, be deemed to have been extinguished by reason of Section 28 of the Limitation Act on the date the notice was given by the Board. For the same reason the plaintiffs could not be deemed to have acquired title by reason of Section 28 of the Limitation Act.

16. The right conferred by the District Boards Act on the District Board is a special right of property with special remedial process for the purpose ofkeeping public roads free from encroachments. The District Board is the trustee for the people and is under an obligation to carry on the duties assigned to it by the U. P. District Boards Act. One of the duties is the maintenance of the public road free from any encroachments. The action of the District Board was an action in the public interest and for carrying on its duty under law. It was thus not even a fit case in which the discretionary remedy or injunction could have been made available to the plaintiffs when they had been found to have encroached upon the public road.

17. In the result, the appeals are allowed, the decree passed by the Courts below are set aside and the plaintiffs' suits are dismissed. In the circumstances of the case, however, parties will bear their own costs throughout.


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