Case Note & Summary
The appellant, Nasirkhan Fazalkhan, filed a suit in the Bombay High Court against the Kalyan Municipal Council seeking a declaration that the construction of House No.17-B in Municipal Ali No.20 was legal and a perpetual injunction restraining the respondent from demolishing the suit house without due process of law. The suit was originally filed against the erstwhile Kalyan Municipal Council. The appellant's case was that the construction was legal and not on a public road. The respondent contended that the construction was on a public road and thus unauthorized. The trial court and the first appellate court both dismissed the suit, holding that the construction was on a public road. The appellant then filed a second appeal in the High Court. The High Court admitted the appeal on Ground No.15, which stated that the lower courts erroneously held that the appellant built on a public road without any evidence. The High Court found that the lower courts had erred in their finding as there was no evidence on record to support the conclusion that the construction was on a public road. The court noted that the burden of proof lay on the respondent to establish that the construction was on a public road, and the respondent failed to discharge that burden. Consequently, the High Court allowed the appeal, set aside the judgments of the lower courts, and decreed the suit in favor of the appellant, granting the declaration and injunction sought.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court admitted the second appeal on Ground No.15, which raised a substantial question of law regarding the finding that the appellant built on a public road without evidence. The court held that the ground raised a substantial question of law and proceeded to decide the appeal on merits. (Paras 1-2) B) Evidence - Burden of Proof - Sections 101, 102 Indian Evidence Act, 1872 - The appellant filed a suit for declaration that his construction was legal and for injunction against demolition. The respondent claimed the construction was on a public road. The court noted that the burden to prove the construction was on a public road lay on the respondent, and the lower courts erred in shifting this burden. (Paras 3-5)
Issue of Consideration
Whether the lower courts erred in holding that the appellant's construction was on a public road without any evidence on record.
Final Decision
Second Appeal allowed. Judgments and decrees of the trial court and first appellate court set aside. Suit decreed in favor of the appellant with declaration that the construction is legal and permanent injunction restraining respondent from demolishing the suit house without due process of law.
Law Points
- Burden of proof
- Evidence Act
- 1872 - Section 101
- Section 102
- Substantial question of law under Section 100 CPC
- 1908
