Vijay Kumar & Ors vs Municipal Council Banga
2023 Latest Caselaw 1540 P&H

                            272

                                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                   CHANDIGARH

                                                                          RSA-1885-2018 (O&M)
                                                                          Reserved on : 16.01.2023
                                                                          Date of decision : 24.01.2023


                            Vijay Kumar and Ors.                                             .....Appellants

                                                             Versus

                            Municipal Council, Banga                                        .....Respondent



                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :    Mr. Krishan Sehajpal, Advocate for the appellants.


                            ALKA SARIN, J.

The present regular second appeal has been preferred by the

plaintiff-appellants against the judgments and decrees passed by both the

Courts below.

The brief facts relevant to the present lis are that the plaintiff-

appellants had filed a suit for declaration to the effect that the plaintiff-

appellants are owners in possession of the property as described in the plaint

as also challenging the notices dated 17.05.2011 and 20.05.2011 issued by

the defendant-respondent (Municipal Council, Banga) being illegal null and

void and consequential relief of permanent injunction restraining the

defendant-respondent from interfering in the possession of the plaintiff-

appellants. The plaintiff-appellants averred in the plaint that the suit property

was their ancestral property having been inherited from their forefathers by

means of survivorship and that the plaintiff-appellants raised a boundary

wall around the suit property and were in exclusive possession of the same YOGESH SHARMA 2023.01.24 10:50 I attest to the accuracy and integrity of this order/judgment.

Chandigarh and that the defendant-respondent had no right or title and that they served

notices dated 17.05.2011 and 20.05.2011 threatening to dispossess them

from the suit property forcibly and illegally. The suit was contested by the

defendant-respondent who denied that the suit property was ancestral in

nature. It was further stated that a notice under Section 172/1/A of the

Punjab Municipal Act, 1911 had been issued for removal of the illegal

encroachment and instead of removing the encroachment the present suit

had been filed.

On the basis of the pleadings of the parties, the following issues

were framed :

I. Whether the plaintiffs are entitled to declaration as prayed for ? OPP II. Whether the plaintiffs are entitled to permanent injunction as prayed for ? OPP III. Whether the plaintiffs have no locus standi and cause of action to file the suit ? OPD IV. Whether the suit is not maintainable in the present form ? OPD V. Whether the plaintiffs have not come to the court with clean hands ? OPD VI. Relief.

The Trial Court, vide judgment and decree dated 28.07.2015,

partly decreed the suit restraining the defendant-respondent from

dispossessing the plaintiff-appellants from the suit property except in due

process of law. However, the suit qua declaration that the plaintiff-appellants

were owners in possession was dismissed. Aggrieved by the judgment and

decree dated 28.07.2015, both the plaintiff-appellants and the defendant-

respondent preferred the appeals. However, both the appeals were dismissed YOGESH SHARMA 2023.01.24 10:50 I attest to the accuracy and integrity of this order/judgment.

Chandigarh by the lower Appellate Court vide judgment and decree dated 08.01.2016.

The present regular second appeal has been preferred only by the plaintiff-

appellants.

Learned counsel for the plaintiff-appellants would contend that

the plaintiff-appellants are owners in possession of the suit property having

inherited the same from their forefathers and that the notices issued by the

defendant-respondent were illegal, null and void. Learned counsel for the

plaintiff-appellants would further contend that both the Courts below have

misread the evidence on the record and that their suit ought to have been

decreed in toto.

Heard.

In the present case though the plaintiff-appellants had

approached the Court claiming themselves to being owners in possession

over the suit property on the ground that the same had been inherited by

them from their forefathers. However, not an iota of evidence was led in

support of the said claim. Rather, in the cross-examination of PW1 Vijay

Kumar it was admitted by him that he had no sale deed nor any other proof

of ownership over the suit property and that the plaintiff-appellants were not

in possession of any proof of ownership of their forefathers. Even PW2

Davinder Kumar admitted that he had not seen any title deed or any proof of

ownership regarding the suit property with the plaintiff-appellants. In view

of the fact that there is not an iota of evidence on the record to prove the

ownership of the plaintiff-appellants over the suit property, the suit qua

declaration that they were owners of the suit property was rightly dismissed.

A lame argument was put up that since the defendant-respondent had issued

the impugned notices to the plaintiff-appellant their ownership over the suit YOGESH SHARMA 2023.01.24 10:50 I attest to the accuracy and integrity of this order/judgment.

Chandigarh property was established. This submission is being noted only to be rejected.

A plaintiff has to stand on his own legs and prove his case by leading cogent

evidence which has not been done in the present case. Moreover, mere

issuance of notices by the defendant-respondent to the plaintiff-appellants

would not bestow them with title over the suit property. It was also noticed

by the Trial Court that PW1 Vijay Kumar had admitted that even with the

defendant-respondent he was not recorded as owner.

In view of the above, I do not find any illegality and infirmity in

the judgments and decrees passed by both the Courts below. No question of

law, much less any substantial question of law, arises for determination in

the present case. The present appeal, which is wholly devoid of any merit, is

accordingly dismissed. Pending applications, if any, also stand disposed off.

Dismissed.

                                                                                       ( ALKA SARIN )
                            24.01.2023                                                     JUDGE
                            Yogesh Sharma

NOTE : Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

YOGESH SHARMA 2023.01.24 10:50 I attest to the accuracy and integrity of this order/judgment.

Chandigarh