Punjab-Haryana High Court
Pawan Dalmia vs Municipal Corporation, Hisar on 13 March, 2024
Neutral Citation No:=2024:PHHC:036022
2024:PHHC:036022 -:1:- RSA-446-2022 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-446-2022 (O&M)
Date of Decision:-13.03.2024
PAWAN DALMIA
... Appellant
Versus
MUNICIPAL CORPORATION, HISAR
... Respondent
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CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
****
Present:- Ms. Garima Modi, Advocate for
Mr. Rose Gupta, Advocate
for the appellant.
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RITU TAGORE, J.
1. Being aggrieved by the concurrent findings returned against
him, appellant-plaintiff has preferred this regular second appeal against the
impugned judgment and decree dated 29.01.2019 passed by learned District
Judge Hisar, affirming and upholding the judgment and decree dated
27.09.2018 passed by learned Civil Judge (Junior Division), Hisar.
2. For sake of convenience, parties to the lis hereinafter, shall be
referred to by their original status in the suit.
3. Appellant/plaintiff instituted a suit for permanent injunction,
seeking to restrain the defendant, Municipal Corporation Hissar, from
demolishing any part of his house bearing No. 98/5 situated in Mohalla
Birkhuwala, Patiala Chowk, Hisar including Northern and Southern
Chabutra of the house, fully detailed in registered sale deed No. 4997 dated
27.01.1982.
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4. It is inter alia pleaded by the plaintiff that his mother had
purchased the suit property vide registered sale deed No. 4997 dated
27.01.1982 and in the year 1983, new house was constructed by demolishing
the old construction and no encroachment was made upon any portion of
public- street or public Chowk adjacent to the house in question. It is pleaded
that officials of defendant Corporation, Hisar threatened to demolish his
house including the area of Chabutra on the Northern and Southern portion
of the house, on some false complaint of his neighbor without giving any
show cause notice for removal of Chabutra. On 06.09.2016 the officials of
the defendant came at the spot and threatened to demolish the portion of
Chabutra of his house that necessitated him to file the suit.
5. Defendant upon appearance, filed written-statement and
controverted the version of the plaintiff, besides raising objections regarding
maintainability of the suit, suit being bad for want of notice under section
389 of the Haryana Municipal Corporation Act, 1994, locus standi of the
plaintiff to file the suit etc. On merits, the defendant pleaded that plaintiff
wants to grab the land of public- street and has illegally encroached upon the
area of public street by constructing a ramp measuring 33'x4', for which the
defendant issued notice under Section 408-A vide No. 3998/B1 dated
22.12.2016, but plaintiff did not remove an illegal encroachment. It is stated
that land underneath Chabutra is a part of public-street and because of the
encroachment made by the plaintiff, problem to negotiate the street is faced
by public at large. By denying the averments of the plaintiff, pleaded for
dismissal of the suit.
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6. Replication to the written statement was not filed. Since parties
were at variance, learned lower Court framed following issues:-
1. Whether the plaintiff is entitled for the relief of permanent
injunction (prohibitory) as prayed for in the head note of the
plaint?OPP
2. Whether the suit of the plaintiff is not maintainable?OPD
3. Whether the plaintiff has no cause of action to file the present
suit?OPD
4. Whether the plaintiff has no locus standi to file the present suit?
OPD
5. Whether the suit of the plaintiff is false and frivolous, as prayed
for?OPD
6. Whether the civil court has no jurisdiction to try and decide the
present suit?OPD
7. Whether the suit is bad for want of notice under section 389 of
the Haryana Municipal Corporation Act, 1994?OPD
8. Whether the plaintiff illegally encroached upon the area of
public street?OPD
9. Relief.
7. In order to prove the case, plaintiff examined Yashpal Clerk, DC
office, Hisar as PWI and the plaintiff himself stepped into witness box as
PW-2 and reiterated the version of the plaint and also produced sale deed Ex
P1 and site plan Ex P2 on record and thereafter, closed the evidence. To
rebut the case of the plaintiff , defendant examined Sunil Lamba as DW-1
and produced documents Ex.D1 photographs; Ex.D2 copy of reply to Notice
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No.3998/B1 dated 22.12.2016; Ex. D3 copy of noting of MC, Hisar; Ex.D4
copy of Notice bearing No.3998/B1 dated 22.12.2016 under Section 408-A
of MC Act, 1994; Ex.D5 copy of order dated 07.01.2015 and Ex.DX site
plan and thereafter, closed the evidence.
8. After hearing the learned counsel for both the parties and going
through the evidence, the learned lower Court dismissed the suit of the
plaintiff. First appeal filed by the plaintiff was also dismissed by learned
District Judge, Hisar, affirming the findings of the learned Trial Court below.
9. Learned counsel for the appellant submits that the Courts below
erred in law in dismissing the suit of the plaintiff and inferences and
conclusions drawn by the learned Courts below are wholly illegal, unjust,
unsustainable in the eyes of law and are liable to be set aside. It is stated that
learned Courts below failed to appreciate the evidence produced by the
plaintiff, who categorically testified that he has not encroached upon any
portion of public-street or public Chowk adjacent to his house. Learned
counsel urged that there is a Chabutra, which is adjacent to the house of the
appellant for the last 40 years and same is also mentioned in the sale deed
Ex.P1 vide which the plaintiff purchased his house. It is stated that Courts
below wrongly relied upon the evidence produced by the
defendant/respondent and misconstrued the evidence presented by plaintiff
and fell in error in dismissing the suit of the plaintiff. A prayer is made to
allow the appeal and set aside the impugned judgments.
10. I have gone through the paper-book with able assistance of the
learned counsel for the appellant.
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11. Learned Courts below, have relied upon an unequivocal and
categorical admission of the plaintiff (PW-2) that Chabutra is constructed in
the public- street and due to that width of street has reduced. There is also a
categorical finding of the Courts below that sale deed Ex.D1 though contain
reference of Chabutra, it does not indicate that Chabutra is a part of the
house of the petitioner and is owned by petitioner. The learned counsel failed
to show that Chabutra was also sold to plaintiff. Notice Ex.D4 was issued by
defendant to plaintiff to remove illegal encroachment on the public-street.
Learned Appellate Court also noted that petitioner made a false assertion that
no notice was given to him by the defendant but at the same time also
admitted that he filed the reply to the notice given by defendant. Learned
Appellate Court also observed that plaintiff failed to disclose length and
breadth of the house and total area of the house of the plaintiff. The learned
Courts below also found that the photograph Ex.D1 clearly depicts
encroachment on the public-street due to Chabutra in question in front of
the house of appellant/plaintiff and street has narrowed down in front of the
house of the plaintiff. The learned counsel could not tell that before raising
construction of his house plaintiff got sanctioned building plan of the house.
12. Learned counsel for the appellant failed to point out any mis-
reading or mis-interpretation of evidence by the Courts below while arriving
at the conclusions drawn against plaintiff. The learned counsel failed to
controvert specific observation of the Courts below made with respect to the
categorical admission made by the plaintiff that Chabutra is constructed in
public-street. Admission, when clear and not withdrawn, is a good and
material source of evidence to rely upon to decide a fact in issue. The learned
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counsel failed to show that conclusions and inferences drawn by the Court
are without any basis or on no evidence. Learned Appellate Court has rightly
applied the ratio of judgment culled in Mohan Lal vs. Mohan Singh, 1995
PLJ 48, to decline the relief of injunction to the plaintiff, where in it is
observed that possession of public property by individual or group of
individual will not create any right and Court has to act as guardian of public
property and should not pass order of injunction in favour of unauthorized
encroacher.
13. All these factors taken together, makes no ground to form a
different opinion to bring the findings of the learned courts below within the
realm of perversity.
14. For the reasons aforementioned, I do not find any illegality or
perversity, in the concurrent findings, which are based on application of oral
and documentary evidence. No ground for interference is made out much less
involvement of any substantial question of law.
15. Resultantly, there is no merit in the appeal and is, hereby,
dismissed.
16. Pending miscellaneous application(s), if any, are also disposed
of accordingly.
( RITU TAGORE)
13.03.2024 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
Neutral Citation No:=2024:PHHC:036022
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