Dismissed

Municipal Council, Dhuri v. Jaswinder Singh and Anr.

Punjab & Haryana HC29 Feb 2012RSA/3235/2011

Case brief

AI extract

What is this about?

In this second appeal, the Municipal Council challenged the decree granting a permanent injunction and restraining it from constructing on specific land. The High Court found no error in the lower courts' judgment, dismissing the appeal and upholding the injunction due to lack of evidence regarding public street encroachment.

What did the court decide?

The appeal was dismissed; the judgments and decrees of the courts below were upheld.

Municipal Council, Dhuri Vs Jaswinder Singh and… — Property and Title | Punjab & Haryana HC (2012)

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RSA No.3235 of 2011

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No.3235 of 2011(O & M) Date of decision:29.02.2012

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Municipal Council, Dhuri ......Appellant

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Jaswinder Singh & another

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......Respondents

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CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA

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Present: Mr.Prem Kumar, Advocate, for the appellant.

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G.S.SANDHAWALIA J.(ORAL)

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CM No.8932-C of 2011

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Application under Section 151 CPC for exemption from filing

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certified copy of ground of appeal filed before Addl.District Judge, Sangrur is allowed in view of the averments made in the application which are duly supported by an affidavit. CM No.8933-C of 2011

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Application under Section 5 of the Limitation Act for condonation of delay of 7 days in filing the appeal is allowed in view of the averments made in the application which are duly supported by an affidavit.

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RSA No.3235 of 2011

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The present appeal has been filed by the defendantMunicipal Council who is aggrieved against the concurrent findings of the Courts below whereby the suit for permanent injunction has been decreed and the defendant has been restrained from carving out any

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RSA No.3235 of 2011

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street or constructing any drain or raising any sort of construction in the plot measuring 3 biswas comprised in khasra No.52//0-9 as described in the head note of the plaint.

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The case of the plaintiffs was that they had purchased the suit property from Harvinder Kaur, Paramjit Kaur etc. vide registered sale deed dated 02.04.2003 and a public street had been constructed upto point A B & I as shown in the site plan and the Municipal Committee has constructed drains and installed streetlights up to point A and B. It is contended that the defendant had no right and title in the suit property and also no right to construct drain and raise construction in the said property. The written statement filed by the defendant mentioned that the disputed street had been in existence at the spot and the plot measuring 3 biswas excluding the said street and the plaintiff had not approached the Court with clean hands and suppressed the material facts and are not entitled to injunction. One patwari had encroached upon the portion of the street by filling earth and due to which the legal proceedings are pending against him and the disputed street has been in existence up to the railway boundary. It was also alleged that the suit was filed in connivance with the patwari to suppress the illegal act of earth filling which causes obstacles and hindrances to the general Public is the user of the street. The defendant-Council has also provided the drainage system and the bricks have been laid in the street. Replication was also filed to the written statement.

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RSA No.3235 of 2011

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Accordingly, the trial Court framed the following issues:

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1. Whether the plaintiffs are entitled to the permanent injunction, as prayed for? OPP

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2. Whether the plaintiffs have not come with clean hands? OPD

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3. Relief.

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Plaintiff examined PW1, Kashmir Singh, Draftsman and

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herself as PW2 and proved the sale deed (Exhibit P2) and placed on record jamabandi (Exhibit P3). The defendant examined Jagdev Sharma as DW1, Draftsman who approved the site plan (Exhibit D1) and thereafter, the evidence of the defendant was closed.

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After taking into consideration the pleadings on record, the trial Court came to the opinion that the defendant had failed to examine any witness from the Municipal committee or to prove any record regarding the existence of the public street through the disputed property that it includes the portion of the public street. Since no documentary evidence had been placed on record that a public street existed up to the railway boundary, accordingly the defendants failed to prove the fact that Sher Singh, Patwari had encroached upon the portion of the street or that any legal proceedings was pending against him. The Court noticed that the Draftsman had proved the site plan (Exhibit P1) and there was a sale deed in favour of the plaintiffs. The site plan (Exhibit D1) produced by the defendant did not depict the encroachment on the portion as alleged by the defendant. Accordingly, it was held that the defendant had no right or title to carve out any street or construct any drain or

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RSA No.3235 of 2011

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raise any sort of construction and it was held that the plaintiffs were entitled to injunction and there was nothing on record to show that they had concealed any material fact from the Court and the suit was dismissed on 08.06.2007 by Addl.Civil Judge (Sr.Divn.) Dhuri. The defendant filed an appeal before the lower appellate Court which has been dismissed on 24.12.2010 by the Addl.District Judge, Sangrur. Resultantly, the present regular second appeal has been filed.

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Counsel for the appellant has contended that the plaintiffs had encroahced upon the street in question, and therefore, the Courts below were not justified in decreeing the suit. The said argument is not sustainable. In the grounds of appeal, it has been mentioned that an application under Order 41 Rule 27 of Code of Civil Procedure had been filed before the lower appellate Court and the said application was dismissed by the lower appellate Court without appreciating the contents of the application. However, the counsel is not in a position to state as to whether the application was decided on the same day or prior to it. A perusal of the site plan which has been produced by the plaintiff (Exhibit P1) and the one which has been produced by the Municipal Council (Exhibit D1) goes on to show that the plaintiff's land does not fall in the street as projected by the Municipal Council. The land is situated at the end of the railway boundary and the Municipal Council is referring to the area which is in the middle of the street. The plaintiffs are seeking injunction regarding the land at the end of the street which is between the railway line and the colony and is at

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RSA No.3235 of 2011

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the dead end. Thus, from the said site plan, it seems to be apparent that the street finished at the points A and B and the streetlights were only till that point and the Courts below were correct in granting injunction. Even otherwise, the Municipal Council has failed to examine any official witness to show that there was any existence of any entry in the plot in question till the railway line. The plaintiffs have shown that they are owners of the plot in question and thus are aggrieved.

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No fault can be found with the well reasoned judgments and decrees of the Courts below. There is no question of law much less any substantial question of law that arises for consideration of the Court. Accordingly, the present appeal is dismissed and the judgments and decrees of the Courts below are up-held.

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(G.S.SANDHAWALIA) JUDGE

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29.02.2012 sailesh

Municipal Council, Dhuri v. Jaswinder Singh and Anr.

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Municipal Council, Dhuri v. Jaswinder Singh and Anr.

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