Regular Second Appeal No.1375 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.1375 of 2009 Date of decision: 07.08.2009 Meena Rani widow of Sh. Balwant Rai, Caste Mahajan, r/o H. No. 10/7, Mohalla Bagrian, Kaithal, Tehsil and District Kaithal. ..... Appellant. Versus Municipal Council, Kaithal, through its Secretary, situated at Kaithal. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rajnish Gupta, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 13.12.2005, rendered by the Court of Additional Civil Judge (Senior Division), Regular Second Appeal No.1375 of 2009 -2- Kaithal, vide which it dismissed the suit of the plaintiff, and the judgment and decree dated 01.05.2008, rendered by the Court of District Judge, Kaithal, vide which it dismissed the appeal. 2. The facts, in brief, are that the plaintiff (now appellant) claimed that she alongwith her minor sons Sunil and Rajesh was the owner in possession of the residential house, which was a part of property no.10/7, situated in Mohalla Bagrian, Kaithal. It was stated that the entire construction was an old one. It was further stated that one Jitu son of Billa, neighbour of the plaintiff, being an influential person, had been pressurizing the Municipal Committee to demolish the toilets, which were part of the house and had been, in existence, since long. It was further stated that said Billu and one Titu in collusion with the Municipal Committee, Kaithal, got issued a notice dated 06.09.1997, under Section 181 of the Regular Second Appeal No.1375 of 2009 -3- Haryana Municipal Act(hereinafter to be called as the Act only). It was further stated that the said notice was illegal, null and void, as the construction, in dispute, was very old. It was further stated that thereafter the Municipal Committee, again issued a notice dated 17.09.1997, threatening to demolish the property. It was further stated that the defendant (now respondent) was asked, many a time, not to do so, but to no avail. On the final refusal of the defendant, to desist from its illegal designs, left with no alternative, a suit for permanent injunction, was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the plaintiff had concealed the true material facts, from the Court and, as such, was not entitled to any relief. It was stated that the plaintiff had encroached upon a part of Regular Second Appeal No.1375 of 2009 -4- the public street, by means of constructing an over hanging structure (Projection Balcony measuring 3' x 13' over the thoroughfare) and also by raising one toilet in the projection. It was further stated that the aforesaid construction was being carried out, on 02.09.1997, when the site was inspected and, as such, was new. It was further stated that the Municipal Committee issued notice under Section 181 of the Act, to the plaintiff on 06.09.1997, as no sanction had been obtained to raise the aforesaid construction. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were struck by the trial Court :- “1- Whether the plaintiff alongwith her minor sons is the owner in possession of the suit property, as alleged in para no.2 of the plaint ?OPP Regular Second Appeal No.1375 of 2009 -5- 2- Whether the construction shown in the site plan is old one ?OPD 3- Whether the suit is not maintainable ?OPD 4- Relief.” 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, dismissed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was also dismissed by the Court of District Judge, Kaithal, vide its judgment and decree dated 01.05.2008. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 9. I have heard the Counsel for the appellant, and have gone through the documents on record, carefully. Regular Second Appeal No.1375 of 2009 -6- 10. The Counsel for the appellant, submitted that the construction, sought to be demolished, by the defendant (now respondent), was an old one. He further submitted that the Courts below were wrong, in coming to the conclusion, that the same was a new one. He further submitted that the Municipal Committee was not competent to issue a notice for demolition of the said construction. He further submitted that the Courts below mis-read and mis- appreciated the evidence, resulting into recording of perverse findings, leading to the dismissal of suit. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal Regular Second Appeal No.1375 of 2009 -7- 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 held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to Regular Second Appeal No.1375 of 2009 -8- the hearing of substantial questions of law. The defendant (now respondent) did not deny the ownership of the plaintiff (now appellant) in respect of the property, in dispute. The plaintiff (now appellant) could only raise construction, after getting the plan sanctioned, from the defendant (now respondent), as the property, in dispute, fell within the municipal limits. It is evident, from the judgments of the Courts below that the site, in question, was inspected by the officials of the Municipal Committee on 02.09.1997, and the aforesaid construction was going on, on that day. It was, thereafter, that notice dated 06.09.1997 was served upon the plaintiff. The Courts below were right, in coming to the conclusion, that the plaintiff by raising the aforesaid construction, had encroached upon the public passage. The Courts below were also right, in holding that the construction, aforesaid, raised by the Regular Second Appeal No.1375 of 2009 -9- plaintiff (now appellant) was a new one. The Courts below were also right in coming to the conclusion that no plan was got sanctioned by the plaintiff (now appellant) from the defendant (now respondent) before raising the construction, aforesaid. The Courts below were also right in coming to the conclusion, that the Municipal Committee was competent to demolish projection and the construction of the toilet etc. made by the plaintiff, by encroaching upon its property, by issuing a notice with regard to the demolition thereof. The concurrent findings of facts, on the aforesaid points, of the Courts below, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the Regular Second Appeal No.1375 of 2009 -10- appellant, being without merit, must fail and the same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) August 07, 2009 Judge dinesh