# Plaintiff/ v. Nagar Palika Parishad Tilhar and another

- **Citation:** (2010) 2 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-11
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-nagar-palika-parishad-tilhar-and-another-40908
- **Pages:** 5

## Headnote

Code of Civil Procedure-Section 100-suit
for injuction-appellant paying tehbajari
to the Nagar Palika-to run the sweet
shop-in
Principle-even
a
tresspasses
cannot
be
evicted
without
taking
recourse
of
law-dismissed
by
court
below-the status of appellant as tenant
came to an end everyday-moreover no
one has right to encroach upon public
road; footpath-meant for public use by
pedestrians-there can be no against
statute-No substantial Question of law
found-appeal dismissed

Held: Para 14

The licence of the plaintiff appellant has
expired long back. Considering all facts
and circumstances of the case in totality
and following the ratio laid down in
Shivala Footpath Sangathan Sansthan
(Dukandar)'s case (supra), judgment of
the lower appellate court is upheld as
footpath cannot be allotted to any
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
person or given on licence on payment of
Tehbazari. Hence the plaintiff appellant
has no legal right to occupy footpath
meant for public use by pedestrians. No
substantial question of law is involved in
this appeal as there can be no estoppal
against the statute
Case law discussed:
A.I.R. 1989 S.C.-2097, A.I.R. 1989 S.C.-997.

## Text

2 All] Siya Ram V. Nagar Palika Parishad and another
433
perused all the three judgments reference
whereof has been given in this revision. It
will complicate the matter if it is decided by
this Court as to which order is to be set
aside or which is not to be set aside or
which is to be set aside partially. Therefore,
while disposing of this criminal revision the
following directions are given:-

(i) The petition filed by opposite party no.
2 Smt.Sanju and opposite party no.3
Master Vipin Kumar Singh (minor)
under Section 125 Cr. P.C. before the
Court of learned Magistrate concerned
is partly allowed.

(ii) The claim of opposite party no.2 Smt.
Sanju is rejected as she is not legally
wedded wife of the revisionist.

(iii) The claim for maintenance of Master
Vipin Kumar Singh, minor is partly
allowed. t is further held that he is
entitled to get a sum of Rs.2,100/-p.m.
from the revisionist from the date of
the petition till the date the child
attains the age of majority. the Apex
Court while referring

(iv) The revisionist is directed to pay to
opposite party no.3, Master Vipin
Kumar Singh, minor, the entire arrears
of maintenance within a period of
three months from today and this
amount shall be paid to the opposite
party no.2, the mother of Master Vipin
Kumar Singh, opposite party no.3, as
she is his natural guardian and she will
receive this amount on behalf of
opposite party no.3.

(v) The revisionist is also directed to pay
the above mentioned future monthly
amount of maintenance to opposite
party
no.3
by
10th
of
each
succeeding
month
through
his
mother, opposite party no.2.

With
the
above
directions
the
revision is finally disposed of.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLHABAD 11.5.2010

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Second Appeal No. 647 Of 2006

Siya Ram

 ...Plaintiff/Appellant
Versus
Nagar Palika Parishad Tilhar and another

 ...Defendant/Respondents

Counsel for the Appellant:
Sri Manish kumsr Nigam

Counsel for the Opposite Parties:
Sri Prem Chand

Code of Civil Procedure-Section 100-suit
for injuction-appellant paying tehbajari
to the Nagar Palika-to run the sweet
shop-in
Principle-even
a
tresspasses
cannot
be
evicted
without
taking
recourse
of
law-dismissed
by
court
below-the status of appellant as tenant
came to an end everyday-moreover no
one has right to encroach upon public
road; footpath-meant for public use by
pedestrians-there can be no against
statute-No substantial Question of law
found-appeal dismissed

Held: Para 14

The licence of the plaintiff appellant has
expired long back. Considering all facts
and circumstances of the case in totality
and following the ratio laid down in
Shivala Footpath Sangathan Sansthan
(Dukandar)'s case (supra), judgment of
the lower appellate court is upheld as
footpath cannot be allotted to any
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
person or given on licence on payment of
Tehbazari. Hence the plaintiff appellant
has no legal right to occupy footpath
meant for public use by pedestrians. No
substantial question of law is involved in
this appeal as there can be no estoppal
against the statute
Case law discussed:
A.I.R. 1989 S.C.-2097, A.I.R. 1989 S.C.-997.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Rejoinder affidavit filed is taken
on record.
Heard counsel for the parties.

2. It appears from the order dated
28.7.2006 that this second appeal was
admitted but question of law has not been
formulated.

3. Counsel for the appellant submits
that the appeal was admitted on the
substantial question of law, " Whether the
lower appellate court erred in law in
dismissing the suit as even a trespasser or
an unauthorised occupant cannot be
dispossessed except in accordance with
law".

4. In support of his contention, he
has relied upon paragraph no. 9 of the
judgment rendered in Krishna Ram
Mahale Vs. Mrs. Shobha Venkat Rao
reported in A.I.R. 1989 S.C.-2097, which
reads thus:

"This proposition was also accepted
by a Division Bench of this Court in Ram
Rattan Vs. State of U.P.(1977) 2 SCR
232: AIR 1977 SC 619).The Division
Bench comprising of three learned Judges
held that a true owner has every right to
dispossess or throw out a trespasser while
he is in the act or process of trespassing
but this right is not available to the true
owner
if
the
trespasser
has
been
successful
in
accomplishing
his
possession to the knowledge of the true
owner. In such circumstances, the law
requires that the true owner should
dispossess the trespasser by taking
recourse to the remedies under the law. In
the present case, we may point out that
there was no question of the plaintiff
entering
upon
the
premises
as
a
trespasser at all as she had entered into
the possession of the restaurant business
and the premises where it was conducted
as a licensee and in due course of law.
Thus, defendant no. 3 was not entitled to
dispossess the plaintiff unlawfully and
behind her back as has been done by him
in the present case. It was pointed out by
Mr.
Tarkunde
that
some
of
the
observations referred to above were in
connection with a suit filed under S. 6 of
the Specific Relief Act, 1963 or analogous
provisions in the earlier Specific Relief
Act, 1877. To our mind, this makes no
difference in this case as the suit has been
filed only a few weeks of the plaintiff
being unlawfully deprived of possession
of the said business and the premises and
much before the period of six months
expired.
In
view
of
the
aforesaid
conclusions arrived by us, we do not
propose to consider the question whether
the agreement between the plaintiff and
defendant no. 3 amounted to a licence or
a sub-lease."

5. Second decision relied upon by
the learned counsel for the appellant is
State of U.P. and others Vs. Maharaja
Dharmander Prasad Singh etc. reported
in A.I.R. 1989 S.C.-997. On the basis of
aforesaid authorities, counsel for the
appellant submits that it is well settled
law that where a person is in settled
possession of the property, he cannot be
2 All] Siya Ram V. Nagar Palika Parishad and another
435
dispossessed except in accordance with
law.

6. Per contra, Sri Prem Chandra,
learned counsel for the respondents
submits that father of the plaintiff
appellant was aHalwai and was selling
sweet meet on a Chabutara on roadside
about ten feet away from the centre of the
road. It is stated that the court below has
held that the plaintiff appellant was a
licensee and not a tenant, who was
allowed to sell his goods on the roadside
on payment of Tehbazari.

7. After hearing counsel for the
parties and on perusal of the record, it
appears that trial court had found that the
plaintiff appellant was only a licensee and
not a tenant. This finding has been given
by the trial court on issue no. 1 and 2
framed by it as under:

"1- D;k oknh fookfnr Hkwfe ij crkSj fdjk;snkj
dkfct gS ;fn gkWa rks izHkko\

2- D;k oknh fookfnr lEifRr dk uxj ikfydk
frygj dk :i;k 60@& izfrekg dh nj ls lu 1955 ls
fdjk;snkj gS\ ;fn gkWa rks izHkko\"

8. The trial court noting the fact that
though the appellant claimed that he was
a tenant and was paying rent under
Kiraidari but he could not produce the
same and from the documents filed by the
plaintiff, it appears that he was only a
licensee. The relevant extract of findings
recorded on the aforesaid issues are as
follows:

^^,slh fLFkfr esa i=koyh ij oknh dh vksj ls tks
izys[kh; o ekSf[kd lk{; izLrqr fd;k x;k gS muls fu%lUnsg
fookfnr txg dk oknk fdjk;snkj rks lkfcr ugha gksrk gS
cfYd ykbZlsUlh lkfcr gksrk gS ftldh iqf"V ih0MCyw&1 ds
izfr ijh{k.k ds c;kuksa ls Hkh gksrh gSA ,slh fLFkfr esa esa mDr
foospuk ls U;k;ky; bl fu"d"kZ ij igqWaprh gS fd oknh
fookfnr txg dh foi{khx.k dh vksj ls fdjk;snkj gksuk
lkfcr ugh gS cfYd ;g lkfcr gS fd oknh fookfnr txg
dk foi{khx.k dh vksj ls crkSj ykbZlsUlh mi;ksx dj jgk gS]
tSlk fd foi{khx.k ds fo}ku vf/koDrk us Hkh vius rdZ esa
Lohdkj fd;k gS fd oknh mudh vksj ls fookfnr txg dk
ykblsUlh ds :i esa iz;ksx djrk gSA - - - - - - - - - -
rnuqlkj okn fcUnq la0&1 o 2 fu.khZr djrs gq, fuLrkfjr
fd;k tkrk gS fd oknh fookfnr txg dk :i;k 60@&
izfrekg dh nj ls fdjk;snkj ds :i esa dkfct o nkf[ky
ugha gS cfYd crkSj ykbZlsUlh fookfnr txg ij dkfct o
nkf[ky gS vkSj ml ij gyokbZxhjh dk dke djrk gSA
vLrq mDr izdkj ls okn fcUnq la0&1 o 2 fuLrkfjr fd;s
tkrs gSaA"

9. As regards the judgment in
Krishna Ram Mahale's case (supra) is
concerned, in that case the plaintiff had
filed a suit for recovery of possession of
premises upon which she had entered as a
licensee to conduct the business of
restaurant.
She
was
subsequently
dispossessed by the licensor unlawfully
and
behind
her
back.
Immediately
thereafter she filed suit for recovery of
possession. In these circumstances, it was
held therein that she was entitled to
decree for recovery of possession. Since
she was unlawfully dispossessed, it could
not be said that the licence having expired
long back and the plaintiff not being
entitled to renewal of licence could only
ask for damages for unlawful possession.

10. From the above, it is clear that
petitioner in the aforesaid case had been
unlawfully dispossessed by the licensor
before expiry of the licence period
whereas in the instant case the plaintiff
appellant is a licensee on day to day basis
on payment of Tehbazaari. His licence
expires every day in the evening. It may
also be noticed that in the case of Krishna
Ram Mahale (supra), a restaurant was
being run by the plaintiff in a private
property whereas in the instant case
436 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
admittedly the plaintiff appellant was
selling sweets on roadside and claims to
have inherited from his father who was
selling sweets since 1955.

11. In the case of State of U.P. and
others
Vs.
Maharaja
Dharmander
Prasad Singh (supra), the question before
the Court was whether the purported
forfeiture and cancellation of the lease of
the Nazool land by the State Govt., were
valid or not and be allowed to be agitated
in proceedings under Art. 226. It was held
in that case that a lessor with the best of
title, has no right to resume possession
extra judicially by use of force from a
lessee even after the expiry or earlier
termination of the lease by forfeiture or
otherwise. The use of the expression re
entry in the lease deed does not authorise
extrajudcial
methods
to
resume
possession. Under law, the possession of a
lessee, even after the expiry or its earlier
termination is juridical possession and
forcible possession is prohibited, a lessee
cannot be dispossessed otherwise than in
due course of law.

12. At this stage, reference may also
be made to a Division Bench decision of
this Court rendered in Shivala Footpath
Sangathan Sansthan (Dukandar) and
others Vs. District Magistrate, Kanpur
Nagar and others (2004(1) C.R.C.-703,
where the petitioners had their shops on
footpath and allotment in their favour
were made by Nagar Nigam for use of
footpath and they were paying Tehbazari.
The Court in the aforesaid circumstances
held that petitioners therein have no right
to occupy the footpath and Nagar Nigam
has no right to allot footpath which is for
public use by pedestrians.

13. In the present case, the plaintiff
appellant has lost from the lower appellate
court. He has not been evicted during trial
or appeal before the lower appellate court
as injunction was in force. He has also not
been evicted during pendency of the
present second appeal as an interim order
was in his favour. The defendant
respondents have applied for vacation of
the interim order and have prayed the
Court to pass appropriate orders. This
action or proceeding cannot tantamount to
eviction of plaintiff appellant by extra
judicial methods or not in accordance
with law.

14. The licence of the plaintiff
appellant
has
expired
long
back.
Considering all facts and circumstances of
the case in totality and following the ratio
laid down in Shivala Footpath Sangathan
Sansthan
(Dukandar)'s
case
(supra),
judgment of the lower appellate court is
upheld as footpath cannot be allotted to
any person or given on licence on
payment of Tehbazari. Hence the plaintiff
appellant has no legal right to occupy
footpath meant for public use by
pedestrians. No substantial question of
law is involved in this appeal as there can
be no estoppal against the statute.

15. The appeal is accordingly
dismissed. Interim order, if any, stands
vacated. No order as to costs.
---------
2 All] Siya Ram V. Nagar Palika Parishad and another
437

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2010

BEFORE
THE HON'BLE AMITAVA LALA, ACJ
THE HON'BLE SHABIHUL HASNAIN, J.

Special Appeal No. 662 of 2010

S.M.A. Abdi and another

 ...Respondents-Appellants
Versus
Private
Secretaries
Brotherhood
and
another ...Petitioners-Respondents

Counsel for the Petitioner:
Sri Mr. Zafar Nayyer, Addl. Advocate
General,
Mr. M.C. Chaturvedi, CSC
Mr. Ravi Shankar Prasad, Addl. CSC
Mr. M.C. Tripathi, Addl. CSC.

Counsel for Respondents:
Mr. M.D. Singh Shekhar
Mr. R.D. Tewari

High Court Rules-1992 Chapter VIII-
Rule-5 Special Appeal-against the order
framing Charges-for willful disobedience
of judgement affirmed by apex courtThree affidavits filed on different timesfound misleading-whether special appeal
maintainable? Held-'yes'.

Held: Para 6

Upon a conjoint reading of the Supreme
Court
judgments,
we
do
not
find
anything that there is any dearth of right
to
prefer
an
appeal
in
such
circumstances, and therefore, according
to us, the appeal is maintainable.
Case law discussed:
AIR 2006 SC 2190; (1998)3 UPLBEC 2333;
(1997) 4 SCC 430; (2004) 8 SCC 683; JT
2001(4) SC 405;(1996) 1 SCC 589;JT 2007
(12) SC 27; AIR 2003 SC 2723; (1972) 3 SCC
839; (1995) 4 SCC 1.

(Delivered by Hon'ble Amitava Lala, J.)

1. Amitava Lala, A.C.J. This special
appeal is arising out of an order passed by
the learned Single Judge dated 23rd April,
2010 in a contempt proceedings, being Civil
Misc. Contempt Petition No. 1774 of 2008.
However, the officers, against whom the
charges have been framed, have preferred
this appeal and the same is supported by the
State.

2. Originally, an order was passed
on 29th July, 1998 by a Division Bench of
this Court to give appropriate pay scale to
the Private Secretaries working in the
office of the U.P. State Law Officers,
Allahabad/Lucknow. The said order was
challenged by the State before the
Supreme Court, which was also dismissed
by order dated 28th of November, 2007.
After about a period of six months, the
contempt application was filed on 11th
May, 2008, which has given rise to the
order impugned in the present appeal. The
State also preferred a review petition
before the Supreme Court against the
order dated 28th November, 2007, which
was dismissed on 23rd July, 2008.
Thereafter, a compliance affidavit dated
17th November, 2008 was filed annexing
the Office Order dated 14th November,
2008, but the learned Single Judge,
hearing contempt matters, found that it
was misleading and in the teeth of the
judgment of this Court and passed an
order, in detail, giving further opportunity
to the appellants herein to comply the
directions given the Court. Such order,
according to us, is in the form of
interpretation of the earlier order passed
by the Division Bench of this Court. A
second compliance affidavit was filed on