RSA No.2461 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2461 of 2009 Date of decision: August 16, 2011. Som Nath ... Appellant(s) v. State of Haryana & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Harsh Bunger, Advocate, for the appellant(s). Ms. Tanisha Peshawaria, Deputy Advocate General, Haryana for respondents No.1 & 2. Shri Raman B. Garg, Advocate, for respondent No.2. Kanwaljit Singh Ahluwalia , J. (Oral): Plaintiff, having failed in two rounds of litigation, has approached this Court by filing the present regular second appeal. Plaintiff instituted a suit for permanent injunction against the State of Haryana and Block Development and Panchayat Officer, Kalanaur, Tehsil and District Rohtak saying that he is owner in possession of the residential plot, detail and description of which was given in para 1 of the plaint. It was prayed that the defendants be restrained from interfering in peaceful possession of the plaintiff over the land. To claim possession, it was pleaded that the father of the plaintiff who was owner in possession of the residential plot total measuring 73 x 54.6 square yards, he had relinquished the share i.e. 19 RSA No.2461 of 2009 -: 2 :- x 54.6 square yards out of his residential plot in favour of the plaintiff in the year 1985 and since then the plot was used for domestic purposes and a shop measuring 8 x 12 feet was also constructed over the residential area. It was stated that the shop was forcibly and illegally demolished by the Municipal Committee, Kalanaur. Shri Bungar to clarify, states that subsequently the Municipal Committee, Kalanaur was impleaded as a party, i.e., defendant No.3 to the suit vide order dated 14.2.2005 whereas the suit was instituted on 19.3.2001/7.8.2004. A joint written statement was filed by defendants No.1 & 2. They raised objection regarding maintainability of the suit and it was averred that the suit was barred by principles of res judicata. On merits, it was stated that portion ABCD is a part of gair mumkin johar and is in possession of Municipal Committee, Kalanaur. Father of the plaintiff had no right and concern with the suit land and since the plaintiff intended to grab the suit land, Municipal Committee, Kalanaur had issued notices under the provisions of Haryana Municipal Act for removing the plaintiff from unauthorized possession of the suit property. It was further stated that the plaintiff was already removed from the unauthorized possession by the Municipal Committee, Kalanaur by following due process of law under the provisions of Haryana Municipal Act. Municipal Committee, Kalanaur had also adopted the written statement filed by defendants No.1 & 2. After the written statement was filed, replication was filed in which the contents of the plaint were reiterated and that of written statement were denied. The trial court had formulated the following issues:- 1. Whether the plaintiff is owner in possession of residential plot detailed in para No.1 of the plaint? OPP RSA No.2461 of 2009 -: 3 :- 2. Whether any shop as alleged by plaintiff was constructed over the plot in question? OPD 3. If issue No.2 is proved, whether the said shop was forcibly and illegally demolished by defendant No.2? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the suit of the plaintiff is barred by res- judicata?OPD 6. Relief. The trial court, considering the evidence led by the parties and contentions advanced by Counsel for the parties, held that the plaintiff has to prove his case on his own legs and is not permitted to thrive on the weaknesses in the defendants' case. The court discarded the part of the deposition of DW1 Inder Singh BDPO wherein he had stated that the suit property is part of khasra No.318. The court held that it was incumbent upon the plaintiff to get the suit property demarcated and having failed to do so, he is not entitled to advantage in view of earlier plaint Ex.D1 and the testimony of DW1 Inder Singh. The court further held that the Municipal Committee, Kalanaur had already demolished the shop of the plaintiff and thus, he was not in possession of the suit property. It will be apposite here to give the following finding returned by the trial court:- “18. ... Keeping in view the dictum laid down by the Hon'ble Court in the above said case coupled with the facts of present case, I have no hesitation to hold that plaintiff is neither owner nor in possession of the suit property.” The Court further held that in view of the withdrawal of the earlier RSA No.2461 of 2009 -: 4 :- suit, present suit filed by the plaintiff was not maintainable. Aggrieved against the judgment of the trial court, an appeal was filed by the plaintiff. The lower appellate court held that after the area of the Municipal Committee, Kalanaur was extended, all property which vested in the Gram Panchayat, stood transferred to Municipal Committee, Kalanaur and it came in the ownership of Municipal Committee, Kalanaur. The lower appellate court further held that it is not disputed that the suit property is abadi deh and as per the case of the plaintiff, the suit property is part of khasra No.318 which is a gair mumkin abadi and which is also discernible from documents Ex.P9 and P-10. The court further held that abadi deh is now being owned by Municipal Committee, Kalanaur. According to the lower appellate court, plaintiff had miserably failed to prove that he is a proprietor of the village and being a proprietor, he had share in the abadi deh. The court further held that since plaintiff had lost possession of the shop due to its demolition, he is not entitled to grant of permanent injunction. Shri Harsh Bungar, Counsel appearing for the appellant, has assailed the second part of concurrent finding of the courts below that the suit is not maintainable. He has stated that by withdrawing the earlier suit, plaintiff had made a statement which is at page 57 of the record. The statement made by the plaintiff reads, “Stated I have filed a suit against Municipal Committee, Kalanaur. My shop has been forcibly demolished, therefore, I do not want to proceed with the present suit. Permission be granted to file a fresh suit”. Counsel states that on basis of this statement made, the court permitted withdrawal of the suit and had passed the following order:- RSA No.2461 of 2009 -: 5 :- “In view of the separately recorded statement, the suit of the plaintiff is dismissed as withdrawn. File be consigned to the record room after due compliance.” Counsel states that since there was permission to withdraw the suit on the basis of the statement made by him, therefore necessary inference has to be drawn that the permission intended was granted. Counsel has further relied upon Surjan Singh v. Amarjit Singh 1993(1) PLR 749 and Lal Singh v. Ajit Singh & another, 2008(3) RCR (Civil) 650 to contend that the statement made by plaintiff, which is at page 57, is to be taken as a whole and furthermore, since the court has stated that in view of the statement, plaintiff has been permitted to withdraw the suit, therefore, the order Ex.DW1 has to be construed that permission was granted to file a fresh suit and the present suit was maintainable. In view of the judgments relied upon by the Counsel for the plaintiff-appellant, order passed as Ex.DW1, which is read in conjunction with the statement made by the plaintiff, this Court is of the view that finding returned by the courts below that the suit is not maintainable, has to be reversed. Hence, issue No.4 is decided in favour of the plaintiff and against the defendants-respondents. However, regarding the remaining issues, the Courts below have found that the evidence led by the plaintiff is lacking to the extent that the plaintiff is owner in possession of the suit property. Taking totality of circumstances into consideration, the Courts below have not given credence to the testimony of Inder Singh DW1 when he stated that land is part of the abadi deh and in khasra No.318. Even if for the sake of argument, testimony of DW1 Inder Singh to this extent is admitted, even then also, plaintiff has failed to prove that the property which formed part of abadi deh RSA No.2461 of 2009 -: 6 :- was in his possession. Documents proved by the plaintiff are receipts of the photographs, and the photographs showing that a wall of some old bricks is standing on the spot and the purchase of building material. That will only show that an effort was made by the plaintiff to encroach upon the public property which vested in the Municipal Committee. I have no hesitation to uphold the finding returned by both the courts below that the plaintiff is neither owner nor in possession of the suit property. Even otherwise, no injunction can be granted in favour of the encroacher over the public property. Having concurred with the findings given by both the courts below, this Court cannot also become oblivious of the fact that due notices were issued to the plaintiff by Municipal Committee, Kalanaur and in pursuance thereof, demolition was carried out and the plaintiff had lost the possession. Since plaintiff lost the possession, suit was not maintainable and no amendment of the suit or prayer for mandatory injunction was made that the plaintiff be put into possession. Since the courts below have appreciated the evidence and given concurrent findings of fact, Counsel for the appellant has failed to formulate any question of law, much less a substantial one, during course of arguments for the consideration of this Court. Hence, there is no merit in the present appeal and the same is dismissed. [Kanwaljit Singh Ahluwalia] August 16, 2011. Judge kadyan