RSA No.2255 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2255 of 2010 (O&M) Date of Decision: 3 - 8 - 2011 Ramesh Kumar ....Appellant v. M/s Siri Chand Jugal Kishore ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Ms.Maninder Preet Kaur, Advocate for the appellant. Mr.Anupam Singla, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.6861-C of 2010 C.M. is allowed. Exemption is granted as prayed for. In CM No.6862 -C of 2010 For the reasons stated in the application, delay of 76 days in refiling the appeal is condoned. C.M. stands disposed of. RSA No.2255 of 2010 (O&M) The present Regular Second Appeal has been filed by the defendant to the suit. He has assailed the judgment and decree dated 15.1.2008 passed by the learned Civil Judge (Jr.Division), Samana granting RSA No.2255 of 2010 (O&M) [2] permanent injunction in favour of the plaintiff-respondent as well as the judgment and decree passed by the District Judge, Patiala dated 9.5.2009 upholding the findings given by the trial Court. Brief facts of the case are that the respondent-plaintiff instituted a suit averring that he was running the business of cloth merchant from the shop situated near Gandhi Ground, Samana for the last 40 years. The appellant-defendant had no right, title, concern or authority to encroach upon the area in front of the shop of the respondent-plaintiff. He prayed for the issuance of a decree for permanent injunction against the defendant, his agents, party men, supporters and relatives etc. restraining them from making any type of encroachment in front of the shop of the respondent- plaintiff situated at Gandhi Ground, Samana. It was specifically pleaded in the suit that the appellant-defendant had encroached upon the front of the shop forcibly without any right, title and this encroachment was removed by the Sub Divisional Magistrate, Samana under the orders of the High Court. Upon notice, the appellant-defendant appeared and filed the written statement. He raised preliminary objections qua maintainability, concealment of material facts, non-joinder and mis-joinder of necessary parties etc. On merit, he denied that he was threatening to encroach upon the suit property. Rather, he pleaded that he was doing the shoe repair work under the neem tree for which the Municipal Council, Samana had issued Tehbazari to him and his father was also working there and there are receipts issued to this effect by the Municipal Council, Samana. A definite stand was taken by the appellant-defendant that the place where he was working, the respondent-plaintiff has no concern with the same. He gave detail of the place where he was doing the shoe repair work. A specific RSA No.2255 of 2010 (O&M) [3] portion of the written statement is required to be reproduced below:- “3. ......On the eastern side of the defendant there is one Chhabil Dass working a shoe repair in front of the shop of Darshan Karyana wala and Labh Singh is working the same work of shoe repair like the defendant in front of the shop of Des Raj and all the defendant and other two persons are working under the Teh Bazari receipt under M.C. Samana as per site plan being produced by the defendant. The defendant is working at a place shown in red colour in the site plan who is not interfering any kind of hindrance in the working of the plaintiff. The work of the defendant is in front of centre of two shops under the neem tree at a far off place and the work of the defendant is not disturbing the work of the plaintiff in any way.” Respondent-plaintiff also filed a replication, in which he denied the averments made in the written statement and reiterated those made in the plaint. After completion of the pleadings, the following issues were formulated by the trial Court:- 1. Whether the plaintiff is entitled to permanent injunction, as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has not come to the Court with clean hands and has concealed the material facts from this Court? If so, its effect? OPD 4. Whether the plaintiff has got no cause of action to file the present suit? OPD 5. Whether the suit is bad for non-joinder of the necessary parties and mis-joinder of the parties? OPD 6. Relief. Sarjiwan Kumar alias Jiwan plaintiff himself appeared as PW1. RSA No.2255 of 2010 (O&M) [4] He submitted his affidavit Ex.PA in examination-in-chief. The relevant portion of his cross-examination when translated into English reads, thus, “It is correct that neem tree is between my and Prem's shop. It is correct that the neem tree is 8-10' away from my shop on the eastern side.” Jawahar Gupta appeared as PW2 and submitted his affidavit Ex.PB in examination-in-chief. He admitted in the cross-examination that the defendant was doing the work of a Cobbler for the last 20/25 years and his father was also doing the same work at the same place. PW3 Rajesh Kumar tendered his affidavit Ex.PC in examination-in-chief. He admitted in the cross-examination that towards the Gandhi Ground, other persons are also doing the work of Cobbler. PW4 Hem Raj tendered his affidavit Ex.PD in examination-in- chief. In cross-examination he also admitted that the defendant at a distance of 10-12 feet towards road side beneath the neem tree was doing the work of shoe repair. Defendant Ramesh Kumar appeared as DW1. He tendered into evidence his duly sworn and attested affidavit Ex.DA in his examination-in- chief. In the cross-examination, this witness admitted as under:- “It is correct that Hon'ble High Court had issued directions to the Administration to vacate illegal encroachments.” He further admitted that earlier the Court allowed the stay application of the plaintiff and against that order, he filed an appeal before the learned Additional District Judge Shri T.R.Bansal and the same was dismissed on 13.3.2007. Defendant also examined Chhabil Dass as DW2. He was also doing the work of shoe repair along with the defendant. RSA No.2255 of 2010 (O&M) [5] To the similar effect is the evidence of Shiv Kumar DW3. Darshan Kumar, Clerk from the office of Nagar Council, Samana was examined as DW4. He stated that he had brought the summoned record pertaining to Tehbazari register for the year 2004-2005 of Municipal Council, Samana. In cross-examination he admitted that there is no receipt of Tehbazari in the name of Ramesh Kumar as per record. The trial Court held that there is no doubt that the plaintiff's witnesses have admitted in the cross-examination that the defendant was doing the work of shoe repair for the last so many years but the defendant has not produced any permission of the Municipal Committee. Furthermore, the trial Court held that Tehbazari receipt issued on 18.10.2004, Mark D, do not reveal that the land was given to the defendant by the Municipal Committee for doing the business of shoe repair. The Court further held that the place where the defendant was doing the work, was a public place left for use of customers of the shops in the market and even the shopkeepers cannot raise construction upon the said vacant land. They had a right to protect the said land from encroachment by any one. Then, issue No.1 was decided in favour of the plaintiff and against the defendant. Qua issues No.2 and 4, the trial Court held that the suit was maintainable and the plaintiff had the cause of action to approach the Court. Issue No.3 was also decided against the defendant and in favour of the plaintiff as the defendant failed to prove that there is any material concealment of facts by the plaintiff. Issue No.5 was decided against the defendant and in favour of the plaintiff. The trial Court concluded that defendant cannot encroach upon any portion of the land lying vacant as shown in the site plan Ex.P1 forcibly and illegally except with permission of RSA No.2255 of 2010 (O&M) [6] the Municipal Council. The District Judge, Patiala in the appeal filed by the defendant, affirmed the findings given by the trial Court and held that even though the area between the shop and the site in dispute is about 15 feet but the defendant had no right to cause obstruction to the customers or owner of the shop. The Court further held that since the defendant had failed to produce any Tehbazari receipt of the Municipal Council, Samana after 31.3.2005, he had no right to encroach upon the public property. I have heard Ms.Maninder Preet Kaur, counsel for the appellant and Mr.Anupam Singla, counsel for the respondent. It is admitted by all the witnesses of the respondent-plaintiff that the appellant-defendant was doing the work of a Cobbler (shoe repair) for the last so many years. It is also not denied that earlier thereto, father of the appellant-defendant was doing the work of shoe repair at the same place. A perusal of site plan Ex.D1 reveals that the place ABCD where the appellant-defendant is carrying on the work of shoe repair is at a distance of 12 feet from the shop of the respondent-plaintiff. The place where the appellant-defendant has kept his Petti is for public use. At the same time, it is also admitted by the appellant-defendant in his testimony that the High Court had issued the orders to the Administration to vacate illegal encroachments. The question which arises for consideration of this Court is as to whether the defendant is an encroacher or not? Darshan Kumar, Clerk, office of Municipal council, Samana while appearing as DW4 stated that there is no receipt of Tehbazari in the name of Ramesh Kumar as per their record. In his affidavit Ex.DA, DW1 RSA No.2255 of 2010 (O&M) [7] Ramesh Kumar appellant-defendant had annexed receipts of Tehbazari Mark D1 to D4. Darshan Kumar DW4 had brought receipt book No.73. He stated that photo copy of receipt No.141/73 dated 18.10.2004 is Mark DY. As a result of above discussion, it is apparent that possession of the appellant-defendant over the suit land was for the last 20/25 years and the same has accrued to him from his father Chhota Ram. Licence fee (Tehbazari fee) was paid to the Municipal Council till 2004. Thereafter, it seems that some orders of the High Court came that all illegal encroachers be removed from the market. This fact is admitted by the respondent- plaintiff and the appellant-defendant. Therefore, no renewal of Tehbazari licence is available on record after 2004-2005. Therefore, both the Courts below have rightly held that after 2004-2005 there being no renewal of the Tehbazari licence, the appellant-defendant had no right to continue at the site in dispute. There is a concurrent finding of fact that the appellant- defendant had no right to continue in the area, which is meant for use of public at large. He has failed to prove Tehbazari permission or receipt of payment made. Hence, there being no merit in the present appeal, especially when during the course of arguments, counsel has failed to formulate any question of law, much less the substantial for consideration of this Court, it is dismissed. ( KANWALJIT SINGH AHLUWALIA ) August 3, 2011. JUDGE RC