Dismissed

(O&M) Municipal Committee ,Thanesar v. Om Parkash and Anr.

Punjab & Haryana HC9 Dec 2024RSA/978/1990

Case brief

AI extract

What is this about?

In a Second Appeal regarding a property dispute, the High Court dismissed the Municipal Committee's appeal. Upholding concurrent findings that the respondent enjoyed undisturbed possession since 1958 and that the Committee merely raised construction during the emergency on non-government land, the Court held the respondent was the owner entitled to possession, though liable only for construction c

What did the court decide?

The appeal was dismissed; the original decree declaring the respondent-owner and instructing recovery of construction costs was upheld.

(O&M) Municipal Committee ,Thanesar Vs Om… — Property and Title | Punjab & Haryana HC (2024)

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**IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ******

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RSA No.978 of 1990 (O&M) Reserved on : 27.11.2024 Pronounced on: 09.12.2024

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Municipal Commi1ee, Thanesar

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.....Appellants

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Vs.

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Om Parkash and another

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.....Respondents

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CORAM:HON'BLE MR. JUSTICE DEEPAK GUPTA

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Present:Mr. Rajinder Goel, Advocate for the appellants.

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Mr. Ravinder Malik (Ravi), Advocate for respondent No.1.

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DEEPAK GUPTA, J.

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Suit filed by the plain&ff (contes�ng respondent herein) seeking declara&on and permanent injunc&on, regarding the property in dispute, was decreed by the Trial Court on 7.9.1987 against defendant - Municipal Commi0ee, Thanesar. The appeal filed by the said defendant (appellant herein) was dismissed by the First Appellate Court vide judgment dated 07.02.1990. Against these concurrent findings, the defendant of the case has approached this Court by way of present Regular Second Appeal.

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In order to avoid confusion, the par&es shall be referred as per their status before learned Trial Court. Trial Court record was called and perused with the able assistance provided by counsel for both the sides.

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As per the case pleaded by the plain&ff, he is owner in possession of a shop bearing Municipal No.223/6 situated at Railway Road, Kurukshetra, as shown in site plan Ex.P-7 a0ached with the plaint. Earlier municipal number of the said shop was 250/6. Plain&ff had been in possession of the same since 1958 on the payment of rent under Coopera&ve Joint Farming Society, Murtzapur through one Surat Singh as its Secretary. Plain&ff con&nued to pay rent to the said Society &ll the year 1963, when the society was dissolved and therea>er, nobody demanded or

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recovered anything from him. Plain&ff claimed that he con&nued to enjoy the proprietary rights of the shop without any interrup&on &ll the year 1976 and as such, he became owner in possession of the same. It was further submi0ed that in the year 1976, when there was state of emergency in the country, the local municipality asked him either to reconstruct the shop himself or let the municipal commi0ee to do the same so that uniform pa0ern of the architectural view could emerge. As plain&ff was unable to construct the shop, he succumbed to the pressure of the authori&es of the municipality to get demolished the old structure for new one. Plain&ff further agreed to pay cost of construc&on in installments at the rate of ₹180/- per month, which he con&nued to pay &ll February, 1979 to a total sum of ₹6120/-. It was further pleaded by the plain&ff that when he asked the defendant to show the accounts, the defendant Municipality instead of showing the accounts served him with a no&ce dated 19.09.1979 to pay the rent and also served a demand no&ce upon him for recovery of ₹2916/- as land revenue. With these averments, the plain&ff brought the suit seeking decree of declara&on that he is owner in possession of the shop in dispute. He further prayed for a decree of permanent injunc&on to restrain the defendant-Municipal Commi0ee from recovering the amount of ₹2916/from him as arrears of rent.

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General public was impleaded as defendant No.1 in the suit but it was proceeded ex-parte, as nobody came forward to file any objec&ons.

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The suit was contested by the defendant-Municipal Commi0ee, who claimed that shop was constructed by it in 1976 and that on the applica&on Ex.D1, the plain&ff was put in possession of the same vide an order dated 09.04.1976 Ex.D-3 as a tenant on payment of rent @ Rs.180/per month.

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6.1 Necessary issues were framed. Evidence produced by the par&es was taken on record.

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6.2 The Trial Court held that plain&ff was established to be in

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RENU possession of the shop in dispute since the year 1958. It was further 2024.12.10 16:58

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proved that the said shop was demolished by the Municipal Commi0ee in the year 1975 for re- construc&on, which was later on allo0ed in favour of the plain&ff. Since the possession of the plain&ff was undisturbed and uninterrupted, therefore, he was declared to be owner in possession of the shop in dispute and it was held that Municipal Commi0ee cannot acquire the proprietary rights merely because fresh construc&on was raised by it. It was also found that applica&on Ex.D1 relied by the defendant did not cons&tute estoppel against the plain&ff. Consequent to the findings on the material issues, suit was decreed on 7.9.1987. Plain&ff was declared to be owner in possession of the land underneath the shop as well as the shop. However, as balance of the cost of the construc&on incurred by the defendant No.2-Municipal Commi0ee was not paid, so it was held to be first charge over the property. Plain&ff's suit was also decreed for injunc&on and defendants were injuncted from interfering into the peaceful possession of the plain&ff over the suit property.

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6.3 The judgment of the Trial Court was appealed against by the defendant Municipal Commi0ee. However, the Appellate Court dismissed the appeal on 07.02.1990.

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Assailing the findings, it is contended by the learned counsel for the appellant-defendant that both the Courts below have erred in ignoring the applica&on dated 29.12.1976 Ex.D-1, wherein prayer had been made by the plain&ff to allot the shop to him, as he did not have any source of income. Learned counsel further contends that Ex.D13, another document contains the admission of the plain&ff, wherein he accepted allotment on the payment of rent @ ₹180/- per month and had been paying the rent at this rate regularly pursuant to the order of allotment. Learned counsel contends that both the Courts have commi0ed legal error in not relying upon these documents, which are clincher between the par&es. Prayer is accordingly made for seHng aside the judgments passed by the Courts below and to dismiss the suit of the plain&ff-respondent.

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Refu&ng the conten&ons, learned counsel for the respondent-

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plain&ff submits that the appellant - defendant failed to produce any document whatsoever as to how it became owner of the suit property, as it is proved that in 1958, the suit property was taken on rent by the plain&ff from a Society and that society was dissolved in 1963. Simply because the Municipal Commi0ee raised construc&on during emergency days in 197576, will not make the Municipal Commi0ee as owner thereof en&tling it to claim rent from the plain&ff. Defending the orders passed by the Courts below, prayer is made for dismissal of the appeal.

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This Court has considered submissions of both the sides and have appraised the record carefully.

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A>er appraising the en&re material on record, this Court does not find any merit in the appeal. The conten&ons as raised by learned counsel for the appellant in respect of the documents Ex.D1 and Ex.D13 relied by the appellant, were duly considered by the First Appellate Court. It will be relevant to reproduce the observa&ons made by the First Appellate Court in this regard, which read as under :-

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“9. It has been nowhere men&oned by the Municipal Commi0ee as to how it became the owner of the land. There is nothing in the record of the Municipality prior to the year 1976 that it is owner of the land in dispute. Even at the &me of argument, the learned counsel for the appellantMunicipal Commi0ee contended that the land was lying vacant and as they built up a shop and therea>er it was leased out in favour of the plain&ff and he is tenant in the disputed shop under the Municipal Commi0ee. In view of the aforesaid pleadings, it is important to ascertain as to since when the plain&ff is in possession of the shop or of the old shop, which earlier existed there. The plain&ff has placed on record copies of assessment register of the Municipal Commi0ee. Ex.P1 is the copy of assessment register pertaining to the years 1970 to 1975 and against shop No.251, Om Parkash (plain&ff) has been shown as owner of the shop. The house tax was assessed at Rs.216/-. Ex.P8 and Ex.P9 are form B' and E' regarding the registra&on of establishment. Om Parkash has been shown as the employer of the shop i.e. in possession of the shop since the year

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So, from this document there is no doubt that Om Parkash is in possession of the shop from 18.7.1958 or even prior to that. On the other hand, the defendant Municipal Commi0ee has put reliance on the applica&on Ex.D1 and the order of the Administrator Ex.D3 passed on that applica&on on 9.4.1977. The applica&on Ex.D1 was wri0en by Om Parkash plain&ff to the Municipal Commi0ee which is to the effect that he had been running the shop at Railway road, Kurukshetra for the last about 15 years and that in the month of September, 1975 his shop was demolished by the Municipal Commi0ee, Thanesar and so he became unemployed and as the Municipal Commi0ee has constructed new shop thereat, he be given preference in allotment of the shop. The Administrator passed an order that the shop no.156 at the rate of Rs.180/- per month as rent be allo0ed to him for the period ending on 31.7.1977. Therea>er, Om Parkash con&nued paying Rs.180/- per month to the Municipal Commi0ee and it was showing the payment in its record i.e. rent demand and collec&on register up to the year 1984-85. Copies of the entries of the register are Ex.D4 to Ex.D12.

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From the year 1958, the plain&ff has been in possession of the shop. Earlier that shop and two more adjoining shops belonged to Co-opera&ve Society and the president of the Co-opera&ve Society was Surat Singh. In the house tax assessment register, shop no.250, 251, 252 have been shown belonging to Surat Singh. In shop no.250 Om Parkash was tenant, in shop no.251 Bhagwan Dass was tenant and in shop no.252 Gokal Chand was tenant. It was contended that in the year 1976 during the days of emergency, the Municipal Commi0ee demolished certain shops situated at Railway Road, Kurukshetra either to remove the encroachment upon the Municipal land or for providing symmetrical view to the shops of that market, by raising fresh construc&on. The other two persons Bhagwan Dass and Gokal Chand built up the shops afresh at their own expenses but the plain&ff could not raise the construc&on himself and so he allowed the Municipal Commi0ee to raise the construc&on. It was contended that Bhagwan Dass and Gokal Chand con&nued to be owner in possession of the shops, which they constructed. It was also men&oned that one shop belongs to Gokal Chand as owner and the other shop belongs to Thakar Dass son of Bhagwan Dass. The Municipal Commi0ee has never claimed Page No.5 out of 9 pages

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any tenancy regarding those shops. The same is the posi&on of the plain&ff. The only difference is that in their case, they raised the construc&on at their own expenses, but the plain&ff allowed the Municipal Commi0ee to raise the construc&on and so as the most, Municipal Commi0ee is en&tled to recover the cost of the construc&on. The coopera&ve society stood dissolved in the year 1963 and that up to the years 1976, nobody charged any rent from the plain&ff nor he was tenant under anybody. So, he was in adverse possession of the shop as well as of the site and had become its owner. There was no concern of the Municipal Commi0ee with the land nor it ever vested in it. Brij Mohan, legal officer, Municipal Commi0ee, Thanesar who appeared as DW2 stated that there is no record with the Municipal Commi0ee showing it as owner of the suit land prior to the year 1976-77. On the other hand, in the record of the Municipality, the shops were shown to be belonging to the co-opera&ve society with Surat Singh as its president. Thus, since the year 1963, nobody challenged the possession of the plain&ff nor demanded any rent from the plain&ff and others and they con&nued in possession up to the year 1976, when during emergency the shops were demolished. So, there was no ques&on of ves&ng the shop in dispute into the Municipal Commi0ee. In case it constructed the shop on the land of other, the Municipal Commi0ee could charge the cost of the construc&on only, from the persons who earlier occupied the shop at those places. When Bhagwan Dass and Gokal Chand could con&nue to be owners of their shops even a>er the new construc&on why not the plain&ff? Only the cost of construc&on could be recovered from him. The plain&ff has placed on record judgment Ex.PC, ‘Babu Ram Vs. M.C. Thanesar’. Babu Ram brought a suit against the Municipal Commi0ee, Thanesar that he was in possession as two shops situated on old Khasra no.234, new Khasra no.218/12, Railway road, Kurukshetra as be purchased the same from Amar Nath, who built up the shops in the year 1937. A>er purchasing those two shops he converted the same into four shops with the permission of the Municipal Commi0ee on 6.6.1959, but the Municipal Commi0ee demolished the Chabutra and shed during the emergency days in his absence as he was arrested under sec&on 107/151 Cr.P.C and was also threatened to be detained under MISA. The Municipal Commi0ee

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then constructed four shops over the said site. That suit of Babu Ram was decreed and the Municipal Commi0ee was directed to remove the structure.

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The applica&on Ex.D1 and order Ex.D3 cannot operate as estoppel against the plain&ff because the plain&ff was in need of the shop as his earlier shop was demolished. In the applica&on, it was men&oned that earlier shop was demolished and so shop be allo0ed to him. He never obtained the shop on rent, rather he claimed allotment on the basis of his previous right that he has a preference for the allotment of the shop. He was paying Rs.180/- per month towards the cost of the construc&on, though, in the order of the Administrator it was men&oned that he shall pay Rs.180/- per month of rent. So, this payment has to be treated as payment towards the cost of construc&on.

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The learned counsel for the appellant- Municipality also raised the conten&on that the plain&ff gave reply to the no&ce Ex.D13 (now original Ex.A1) through his counsel Shri Tara Chand Tanwar Advocate and in that reply, he has admi0ed himself to be tenant under the Municipal Commi0ee. This reply does not bear the signature of the plain&ff anywhere and the Advocate, when he appeared as AW1, could not produce any power of a0orney of the plain&ff in his favour. Even if, it is taken that the reply was given by the plain&ff, it was in reply of no&ce served upon him by the Municipal Commi0ee demanding rent from him. Any request for reduc&on of rent on the plea that rent of the demanded period has already been paid cannot be taken as estoppel of that nature, which may be considered enough for the dismissal of his suit. The facts and circumstances of the case and the previous history of ownership and possession sufficiently establishes that the Municipal Commi0ee only constructed the shop during the days of emergency and the land underneath never belongs to it and so it is en&tled to recover the cost of construc&on. So, the findings of the learned trial Court in this behalf is unheld. The finding of the learned trial court is also upheld that the payment of Rs.180/- per month should be treated as payment towards the cost of the construc&on of the shop, and this amount shall be deducted while recovering the remaining cost of the construc&on from the plain&ff. Thus,

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the findings on issues no.1, 2 and 9 are up-held.

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It is, thus, clear that it was found by the courts below on the basis of evidence on record that the plain&ff was in possession of the shop ever since 1958 or even prior thereto. The shop was taken by him on rent from a Society, which was dissolved in 1963 and there was nothing on record that the Society claimed rent from the plain&ff from 1963 onwards. The record of the Assessment Register maintained by the defendantCommi0ee from the year 1970 to 1975 clearly revealed the plain&ff to be employer of the shop, on which the house tax was even assessed. The Appellate Court has also found that in what circumstances the Ex.D-1 was wri0en, inasmuch as during the days of emergency in the year 1975, the Municipal Commi0ee had demolished certain shops situated at Railway Road, Kurukshetra, either to remove the encroachment or to raise construc&on in a symmetrical view. Appellate Court has also found that the shops adjoining to the suit shop had already been declared to be owned by the other persons i.e. Thakur Dass etc. Municipal Commi0ee had lost li&ga&on in respect of the similar shop situated nearby. Learned Appellate Court has also found that when Bhagwan Dass and Gokul Chand could be owners of the shops even a>er the new construc&on, there was no reason that why the plain&ff will not become the owner thereof and that only the cost of construc&on could have been recovered from him by the defendantCommi0ee. It has been rightly held that the plain&ff was not estopped either because of applica&on Ex.D1 or order Ex.D3, as at the relevant &me, the plain&ff was in the need of the shop as his earlier shop had been demolished. It was under the compelling circumstances that Ex.D1 was wri0en by him. Regarding Ex.D13, it has been observed that Sh. Tara Chand Kanwar, Advocate who had sent reply to the legal no&ce, had himself admi0ed as a witness that the reply did not bear the signature of the plain&ff. It was further admi0ed by said Tara Chand Kanwar that he did not have any Power of A0orney of said plain&ff so as to send said reply to him. As such, the Ex.D-13 has been rightly taken out of considera&on by the Appellate Court and so, plain&ff cannot be estopped on the basis of the said

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This Court a>er perusing the en&re record, does not find any ground whatsoever to interfere in the concurrent findings of facts as recorded by the Courts below, which are based on proper apprecia&on of evidence on record. No substan&al ques&on of law is found to be involved. As such, holding the present appeal to be devoid of any merit, the same is hereby dismissed.

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December 09, 2024 Renu

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(DEEPAK GUPTA) JUDGE

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Whether Speaking/reasoned Yes/No Whether Reportable Yes/No

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Page No.9 out of 9 pages

(O&M) Municipal Committee ,Thanesar v. Om Parkash and Anr.

Case brief

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(O&M) Municipal Committee ,Thanesar v. Om Parkash and Anr.

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