Dismissed

Rakesh & Anr. v. Municipal Council Gurgaon

Punjab & Haryana HC19 Feb 2014RSA/2833/2011

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Punjab and Haryana dismissed the appeal filed by unsuccessful plaintiffs seeking to set aside a lower appellate court's decision that denied them a permanent injunction over a plot claimed to be open space in a regularised municipality colony.

What did the court decide?

The instant appeal stands dismissed with no order as to costs.

Rakesh & Anr. Vs Municipal Council Gurgaon — Property and Title | Punjab & Haryana HC (2014)

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RSA No.2833 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.2833 of 2011 Date of Decision : 19.2.2014

Rakesh and another

.....Appellants

Vs.

Municipal Council, Gurgaon

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......Respondent

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CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present : Mr. L.N. Verma, Advocate for the appellants. Mr. Surinder Chaudhary, Advocate for the respondent.

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RAMESHWAR SINGH MALIK, J

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The present appeal, at the instance of unsuccessful plaintiffs, is directed against the impugned judgement of reversal dated 15.3.2011 passed by the learned Additional District Judge, Gurgaon, whereby judgement and decree dated 22.3.2010 passed by the learned trial court decreeing the suit of plaintiffs-appellants for permanent injunction was set aside, allowing the appeal of defendant-Municipal Council.

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Facts first.

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Plaintiffs filed the present suit for permanent injunction, claiming that they were owner in possession in equal shares of suit plot bearing No.3-R, shown in red colour in the site plan. Plaintiffs claimed the ownership through a civil court decree passed in Civil Suit No.385 of 1986 titled as “Rakesh and another Vs. Jagdhir Singh” decided on 8.1.2007, by the court of learned Additional Civil Judge (S.D.), Gurgaon. It was the pleaded case of the

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plaintiffs that their vendor Jagdhir Singh was recorded as co-sharer to the Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2833 of 2011 2

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extent of 45/689 share in Khewat no.3935, Khatauni No.5341 Khasra No.10407/5877/105 measuring 1 Bigha, 14 Biswas, 9 Biswasies, as per jamabandi for the year 1991-92. The suit plot was situated in Rajendra Park, Gurgaon. Plaintiffs applied for `No Dues” to the Municipal Council, Gurgaon on 14.5.2007 but the defendant instead of granting No Due Certificate, asserted that the said plot was an open space and it was so communicated to the plaintiffs vide letter dated 26.6.2007. When the defendant Municipal Council, now Municipal Corporation started threatening to take possession of the suit plot for the purpose of developing the park, plaintiffs filed the present suit.

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Having been put to notice, the defendant appeared and filed its written statement, raising more than one preliminary objections regarding notice under Section 52 of the Haryana Municipal Act, 1973, cause of action, suit being bad for non joinder and misjoinder of necessary parties, suppression of material facts and estoppel etc. On merits, it was stated that Rajendra Park was a colony of Gurgaon village, included within the municipal limits vide Haryana Government Gazette notification dated 5.2.1996. Lay out plan of the said colony was sanctioned by the Government of Haryana. In the regularised lay out plan of Rajender Park, disputed land was open space. No Due Certificate could not have been issued to any one. It was also asserted by the defendant-respondent Municipal Corporation that plaintiffs were neither the owners nor in possession of the suit land because of which, they have no right, title or interest in the suit property. The suit plot was included within the municipal limits vide notification dated 5.2.1996 and no person could erect or re-erect any building without getting the building plan sanctioned from the department. The civil court decree dated 8.1.2007 between plaintiffs and

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2833 of 2011

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Jagdhir Singh was of no consequence, being a collusive decree. Denying all other allegations levelled in the plant, dismissal of the suit was prayed for.

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On completion of pleadings of the parties, the learned trial court

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framed the following issues :-

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“1. Whether the plaintiff is entitled for a decree for permanent injunction restraining the defendant from interfering in the peaceful possession and ownership of the plaintiffs over the plot mentioned in para no.1 of the plaint ? OPP.

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If issue no.1 is proved in affirmative, as to what effect ? OPP.

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Whether the suit is not maintainable in the present form ? OPD.

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Whether the suit is barred by limitation ? OPD.

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Whether the plaintiff is estopped from filing the

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present suit by his own act and conduct ? OPD.

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Relief.”

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With a view to substantiate their respective stands taken, both the

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parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on the record, learned trial court came to the conclusion that the plaintiffs proved their case. Consequently, the suit was decreed, vide judgement and decree dated 22.3.2010. Feeling aggrieved, defendant filed its first appeal, which came to be allowed by the learned Additional District Judge, Gurgaon, vide impugned judgement and decree dated 15.3.2011. Hence this Regular Second Appeal at the instance of the plaintiffs.

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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Learned counsel for the appellants-plaintiffs submits that the learned trial court rightly decreed the suit. However, the learned lower appellate court fell in serious error of law, while setting aside the cogent findings recorded by the learned trial court. Appeal of the defendant was liable to be dismissed, but it was illegally allowed by the learned Additional District Judge, Gurgaon, because of which the impugned judgement was not sustainable in law. Relying upon the judgements of Hon'ble Supreme Court in Raj Kumar Davindra Vs. Singh and another Vs. State of Punjab and others, 1972 PLJ 592, Pt. Chet Ram Vashist (dead) by LRs Vs. Municipal corporation of Delhi , 1995(1) SCC 47 and a judgement of this court in Banwari Vs. State of Haryana and others, 1983 PLJ 6, learned counsel for the appellants prays for setting aside the impugned judgement and decree, by allowing the present appeal.

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Per contra, learned counsel for the defendant-respondent Municipal Corporation submits that the plaintiffs were neither owners nor in possession of the suit land. The civil court decree dated 8.1.2007 was totally insignificant and of no consequence, being a collusive decree. The said decree was suffered by a person, who himself was not having any title to the suit land and he could not have transferred a better title to the plaintiffs. Under the garb of the said collusive decree, which was also unregistered one, plaintiffs were trying to encroach upon the suit land, which was part of open space meant for development of public park. As per the sanctioned lay out plan, the defendantCorporation was intending to develop the suit land as a public park, because of which, No Due Certificate sought by the plaintiffs was rightly declined. He prays for dismissal of the appeal.

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Having heard the learned counsel for the parties at considerable

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this court, in its exercise under Section 100 of the Code of Civil Procedure (`CPC' for short). No substantial question of law has been found involved and the present appeal is without any merit, therefore, liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.

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It is a matter of record that as per the notification Ex.D-1, letter of authorisation of colony Ex.D-2, list of colonies, including Rajendra Park as Ex.D-2/A and site plan Ex.D-3, the suit plot was the ownership of the respondent-Municipal Corporation. On the other hand, site plan Ex.P-1, jamabandi for the year 1991-92 Ex.P-2 showing ownership of Jagdhir Singh S/o Ishwar Singh qua 45 share and copy of mutation Ex.P-3 showing the change of ownership in favour of plaintiffs were the documents, on the basis of which, plaintiffs were claiming ownership. However, the documents contained in Exs.P-1, P-2 and P-3 would show that these were not the documents of title. Although, presumption of truth attaches to these documents, but the said presumption is also rebuttable. In the present case, abovesaid documentary evidence in the form of Exs.D-1, D-2, D-2/A and D-3 have clearly rebutted the said presumption. Further, notification Ex.D-1 and the orders Ex.D-2 were not even challenged by the plaintiffs. Having said that, this court feels no hesitation to conclude that plaintiffs did not approach the court with clean hands, therefore, the impugned judgement passed by the learned Additional District Judge deserves to be upheld.

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Plaintiffs were guilty of concealment of all the abovesaid material

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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facts from the notice of the court. Rajender DW-1, Building Inspector of the respondent-Corporation stated on oath that Rajendra Park was carved out by a private person. Streets, roads, parks and open space were left out by the Municipal Corporation for use of general public at large. The suit plot, as per the municipal record, vested in the Municipal Corporation, Gurgaon. The area in question was included in the municipal limits, vide notification dated 5.2.996 Ex.D-1. The colony of Rajendra Park, where the suit plot was situated was regularised by the Haryana Government, vide order dated 17.12.2004 Ex.D-2. This witness was put to cross examination, but the plaintiffs could not extract anything objectionable and the witness successfully stood the acid test of cross examination.

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The suit plot has been found to be vested in the Municipal Corporation and learned counsel for the respondent was right in saying that the plaintiffs wanted to encroach upon the suit land under the garb of insignificant, unregistered and collusive decree. In view of the foregoing discussion, the irresistible conclusion is that the case of the plaintiffs was based on their clever device and falsehood, because of which they were caught at the wrong foot and rightly non suited by the learned Additional District Judge,while passing the impugned judgement, which deserves to be upheld.

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It is not the case of the plaintiffs that their decree dated 8.1.2007 was based on any family settlement. On the other hand, the case of the plaintiffs was that they purchased the suit plot from Jagdhir Singh s/o Ishwar Singh through a civil court decree. In such a situation, the decree was requiring compulsory registration, which was admittedly not registered. Thus, the said collusive decree was rightly held to be of no consequence, because it will not confer any title in favour of the plaintiffs. It is so said because this

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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court has found merit in the contention raised on behalf of the respondentCorporation that the plaintiffs were trying to encroach upon the suit plot under the garb of an insignificant and collusive decree. The learned Additional District Judge has rightly appreciated the true facts of the case and also the relevant principles of law, because of which the impugned judgement deserves to be upheld.

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So far as the judgements relied upon by learned counsel for the appellants are concerned, there is no dispute about the law laid down therein, however, the cited judgements are of no help to the plaintiffs-appellants, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others , 2002 (3) SCC 533.

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Before arriving at a judicious conclusion, learned Additional District Judge recorded his cogent and convincing findings in paras 15 and 16 of the judgement and the same read as under :-

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“15. From examination of record in light of aforesaid rival contentions, it is crystal clear that PW-1 Bhupinder Singh plaintiff No.2 in affidavit Ex.PW-1/A reiterated pleadings of plaint. He proved site plan of suit property Ex.P-1, jamabandi for the year 1991-92 Ex.P2. In jamabandi Jagdhir is mentioned as co-owner/co-sharer of the suit property. On the basis of award dated 17.8.2007 Mutation Ex.P-3 was sanctioned. Plaintiff applied for no dues certificate from

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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Municipal Committee, Gurgaon which was declined by stating that the plot is open space. PW-2 Mool Chand Punia, Draftsman proved having prepared site plan Ex.P1. DW-1 Rajender, building Inspector reiterated pleadings of written statement. He proved Gazette of Notification dated 5.2.1996 including of area of village Gurgaon and Rajendra Park. The Rajendra Park colony was regularised by Haryana Government through letter dated 17.12.2004 Ex. D-2 and layout plan Ex.D-3. Disputed land is shown as Mark 1 in layout plan. The suit land vest in defendant and defendant has every right to maintain and develop the suit land for benefit and use of general public at large. Plaintiff applied for NOC on 15.5.2007 which was declined through letter dated 26.6.2007 Ex.D-4.

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From perusal of Mutation Ex.P-3 it is evident that it was sanctioned in favour of plaintiffs on the basis of award dated 8.1.2007. In award it is mentioned that the suit for specific performance of plaintiffs was allowed. Defendant Jagdhir was directed to execute sale deed. There is no document to show that Jagdhir had executed sale-deed in favour of plaintiffs regarding the suit land. So, mutation entries Ex.P-3 are not sufficient for declaration of plaintiffs to be owners in possession of suit land. Through notification dated 5.2.1996 Ex.D-1 Haryana Government was pleaded to include certain areas within limits of Municipal Committee, Gurgaon. Through letter dated

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2833 of 2011

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17.12.2004 Ex.D-2, schedule Ex.D-2/A and layout plan Ex.D-3 various areas of Rajendra Park was regularised by Government of Haryana including roads, parks etc. Suit property is shown as Mark A which is in middle of road and is rounded about. So, the suit land vested in defendant Municipal Council. Municipal Council is entitled to maintain the common areas including roads, parks etc. for welfare of general public. As per ratio of judgement in Mohan Lal Versus Mohan Singh's case (supra), it is well settled principle of law that courts have to act as guardian of public property. No injunction can be passed in favour of a person who has made unauthorised encroachment over the public property. It is well settled that revenue entries in record of right do not create any right in favour of person whose name appear in revenue record. Ratio of other ju7dgements is not at issue. As such their critical analysis is not called for. In view of above material facts and well settled principle of law it is held that plaintiffs are not entitled to a decree for permanent injunction. The suit of plaintiff is not maintainable, barred by limitation and plaintiff is estopped from filing the same. In view of above observations the findings of learned trial court on issues no.1 and 2 as well as 3 to 5 are unsustainable and are reversed. Accordingly, point of determination is decided in favour of appellant.”

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During the course of hearing, learned counsel for the appellants

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

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could not point out any jurisdictional error or patent illegality apparent on the record of the case in the impugned judgement rendered by the learned first appellate court. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned Additional District Judge. The impugned judgement has been found to be based on sound reasons, therefore, the same deserves to be upheld. Further, no question of law, much less substantial question of law has been found involved in the instant appeal, which is sine qua non for inference at the hands of this court, in exercise of its jurisdiction under Section 100 CPC. Thus, the impugned judgement and decree deserve to be upheld for this reason, as well.

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No other argument was raised.

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Having considered the peculiar facts and circumstances of the present case noted above, coupled with the reasons aforementioned, this court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.

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Resultantly, instant appeal stands dismissed, however, with no order as to costs.

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19.2.2014 GS

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RAMESHWAR SINGH MALIK) JUDGE

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Sahni Greesh 2014.05.19 11:47 I attest to the accuracy and integrity of this document High Court, Chandigarh

Rakesh & Anr. v. Municipal Council Gurgaon

Case brief

What is this about?

What did the court decide?

Rakesh & Anr. v. Municipal Council Gurgaon

Case brief

What is this about?

What did the court decide?

What the court decided

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