Dismissed

Brij Lal v. Rakesh Kumar etc.

Punjab & Haryana HC5 Aug 2009RSA/3358/2007

Case brief

AI extract

What is this about?

This second appeal challenged the decree for a mandatory injunction regarding alleged encroachment on a public passage. The High Court dismissed the appeal, upholding lower courts' findings on evidence, rejecting the appellant's failure to prove sanction for the specific projections.

What did the court decide?

The appeal was dismissed with costs, upholding the mandatory injunction decree.

Brij Lal Vs Rakesh Kumar etc. — Civil Procedure and Limitation | Punjab & Haryana HC (2009)

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Regular Second Appeal No. 3358 of 2007

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Regular Second Appeal No.3358 of 2007

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Date of decision: 05.08.2009

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Brij Lal son of Shri Sadhu Ram r/o Sirhind City, Tehsil and District Fatehgarh Sahib.

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..... Appellant.

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Versus

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Rakesh Kumar, 2. Naresh Kumar, sons of Roshan Lal, r/o Mohalla Adampur Sirhind City, Tehsil and District Fatehgarh Sahib,

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Satish Kumar, (since deceased) son of Roshan Lal, through Lrs (i) Kaushalya Rani wife of Satish Kumar, (ii) Raj Kumar son of Satish Kumar, (iii) Manish Kumar s/o Satish Kumar and Meena Rani d/o Satish Kumar, all residents of Mohalla Adampur Sirhind City, Tehsil and District Fatehgarh Sahib.

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..... Respondents/plaintiffs.

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4.Municipal Council, Sirhind Fatehgarh Sahib

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through its Executive Officer.

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5.Municipal Council Sirhind Fatehgarh Sahib through its President.

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..... Respondents/defendants

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Jatinder Kumar, 7. Sanjiv Kumar sons of Brij Lal, 8. Anju, 9. Dimple daughters of Brij Lal,

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Regular Second Appeal No. 3358 of 2007

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All legal representatives of Bimla Rani wife of Brij Lal residents of Sirhind City, Tehsil and District Fatehgarh Sahib.

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.... Proforma respondents

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CORAM: HON'BLE MR. JUSTICE SHAM SUNDER

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Present:Mr. M.K. Singla, Advocate for the appellant. Ms. Monica Goyal, Advocate for respondent nos. 1 to 3. Mr. Jaspreet Singh, Advocate for respondent nos. 4 and 5.

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Proforma respondent nos. 6 to 9 already ex-parte vide order dated 01.04.2008.

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Sham Sunder, J.

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This Regular Second

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Appeal is directed against the judgment and decree dated 01.11.2006, rendered by the Court of Additional Civil Judge (Senior Division), Fatehgarh Sahib, vide which it decreed the suit of the plaintiffs for permanent injunction and the judgment and decree dated 23.05.2007,

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Regular Second Appeal No. 3358 of 2007

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rendered by the Court of District Judge, Fatehgarh Sahib, vide which it dismissed the appeal.

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According to the plaintiffs (now respondents), defendant nos. 1 and 2 had constructed projections in front of their shops, situated in main bazar Sirhind, shown in red colour, in the site plan. Defendant nos.1 and 2 had illegally encroached upon the public passage on the eastern and northern side by constructing projections. It was further stated that defendant nos. 3 and 4 were maintaining the said public passage. It was further stated that defendant nos. 1 and 2 constructed their shops illegally and encroached upon the public passage by making projections illegally 2-1/2 years ago. It was further stated that defendant nos. 1 and 2 did not get the site plan sanctioned from defendant nos. 3 and 4 for constructing the projections. It was further stated that the defendants were

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Regular Second Appeal No. 3358 of 2007

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many a time, asked to remove the said illegal projections, but to no avail. On their final refusal, to desist from their illegal designs, left with no alternative, a suit for permanent injunction was filed. 3. Defendant nos. 1 and 2, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was pleaded, that the suit was barred by time as the shops and projections were constructed by them in the year 1981, after getting the site plan sanctioned, from the Municipal Committee, Sirhind. It was further pleaded that the plaintiffs had no locus standi to file the suit. It was denied that defendant nos.1 and 2 had encroached upon the public passage. It was stated that, in case any encroachment was proved, the same was upon the property of defendant nos. 3 and 4. It was further stated that the public passage was maintained by defendant nos. 3 and 4. It was denied that defendant nos. 1

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Regular Second Appeal No. 3358 of 2007

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and 2 had constructed the said projections about 2-1/2 years earlier to the filing of

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the suit. The remaining averments, contained in the plaint, were denied, being wrong.

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Defendant nos. 3 and 4, also put in appearance, and contested the suit, by way of filing separate joint written statement, wherein, it was averred that the suit was barred for want of service of notice under Section 49 of the Punjab Municipal Act. It was stated that the encroachment on the public passage, if found, shall be removed in due course of law. The remaining averments, contained in the plaint, were denied, being wrong.

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From the pleadings of the parties, the following issues were framed by the trial Court :-

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“1- Whether the plaintiffs are entitled for mandatory injunction as prayed for ?OPP

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2- Whether the suit of the plaintiffs is within limitation ?OPP

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3- Whether the plaintiffs have no locus standi and no cause of action to file the present suit ?OPD

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4- Whether the suit is bad for want of notice under Section 49 of the Punjab Municipal Act ?OPD

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5- Relief.”

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6 The parties led evidence in support of their case. After hearing the Counsel for the parties, and on going through the evidence, and record of the case, the trial Court decreed the suit.

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Feeling aggrieved, an appeal was preferred by defendant nos.1 and 2/appellants, which was also dismissed, by the Court of District Judge, Fatehgarh Sahib, vide its judgment and decree dated 23.05.2007.

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Feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant-defendant no.1.

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Regular Second Appeal No. 3358 of 2007

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I have heard the Counsel for

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the parties, and have gone through and perused the record, carefully.

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The following substantial questions of law arise for consideration:-

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“1. Whether the Courts below misread and mis-appreciate the evidence and recorded perverse findings that defendants no. 1 and 2 had made encroachment on the public passage, by constructing projections?

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Whether the Courts below illegally held that the plaintiffs had locus standi to file the suit?”

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The Counsel for the appellant submitted that the shops were constructed by defendant nos. 1 and 2, after getting the plan sanctioned, from the Municipal Committee. He further submitted that the projections were not constructed/made by defendant nos. 1 and 2, by encroaching upon the public passage. However, the same

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were made/constructed by them, on their

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own property. He further submitted that the plaintiffs (now respondents) had no locus standi to file the suit for the removal of alleged encroachment. He further submitted that the Courts below, illegally decreed the suit.

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On the other hand, the Counsel

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for the respondents, submitted that the encroachment had been made by constructing/making the projections by defendant nos. 1 and 2 over the public passage and, as such, the plaintiffs had locus standi to file the suit for removal of the same. She further submitted that since the Municipal Committee failed to perform its duty, the Court was right in passing a decree, for mandatory injunction, for the purpose of removal of the projections. She further submitted that the judgments and decrees of the

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Courts below, being legal and valid, were liable to be upheld.

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After giving my

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thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further

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held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The existence of the projections was not disputed by the appellant. According to the plaintiffs, the projections were constructed about 2-1/2 years, prior to the filing of the suit. The version of the plaintiffs was corroborated by Jaswinder Singh, PW-2, resident of Mohalla Adampur Sirhind City, where the property, in question, is situated. No doubt, the defendants claimed that they constructed/ made projections. in the year 1981, but no evidence was produced by them to prove that factum. Two plans Ex.D1 and D- 2,which were sanctioned, by the Municipal Committee for raising construction of the shops, in question, were produced on record. These plans did not go to prove that the shops were actually constructed in the year 1981. No evidence was led by

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defendant nos.1 and 2, that the disputed projections were constructed/made by them

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after getting the site plan sanctioned from the Municipal Committee. Under these circumstances, it could be very well said that the said projections were illegally constructed by defendant nos.1 and 2 after encroaching upon the public passage. Defendant nos. 3 and 4 the Municipal Council Sirhind filed written statement through the Executive Officer and its President. They took up the plea that if, any encroachment was proved, that shall be removed in due course of law. Rajinder Parshad, Junior Assistant, Municipal Council, DW-1, no doubt stated that the projections were not in the property of the committee. He, however, admitted that in Ex.D-1 and D-2, plans the projections have not been shown. The evidence of this witness that the projections are not in the municipal property, was hardly of any consequence. He is neither the Engineer

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nor the SDO of the Committee. It was not within the purview of his duties, to find out the encroachment on the municipal passage or land. He being a layman, not well versed in technical aspects, could not exactly say whether the encroachment on the public passage had been made by the appellant, by constructing projections. His evidence was, thus, rightly ignored by the Courts below. The concurrent findings of fact, recorded by the Courts below, that defendant nos. 1 and 2 failed to prove that they constructed the projections in the year 1981, as they had failed to produce any site plan, which was got sanctioned by them, for constructing those projections from the Municipal Council; that the projections had been constructed by defendant nos. 1 and 2, by encroaching upon the public passage; about 2-1/2 years before the filing of the suit; that the plaintiffs had locus standi to file the suit for removal of encroachment

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from the public passage as they are the user thereof; that the Municipal Council failed to remove the encroachment of its

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own; and that the plaintiffs were entitled to the mandatory injunction, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference by this Court. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellant.

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For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs.

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05.08.2009, dinesh

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( Sham Sunder ) Judge

Brij Lal v. Rakesh Kumar etc.

Case brief

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Brij Lal v. Rakesh Kumar etc.

Case brief

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