RSA No.4755 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4755 of 2009(O&M) Date of decision: 22.3.2010 Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Surender Pal ......Respondent(s) (RSA No.4748 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Smt. Vanti Devi ......Respondent(s) (RSA No.4752 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Ishwar Singh ......Respondent(s) (RSA No.4753 of 2009) (O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Vijay Kumar ......Respondent(s) (RSA No.4754 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Smt. Krishna Devi ......Respondent(s) (RSA No.4756 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Kanwar Saini and others ......Respondent(s) (RSA No.4757 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Harbans Lal ......Respondent(s) RSA No.4755 of 2009(O&M) 2 (RSA No.4758 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Jagdish Kumar ......Respondent(s) (RSA No.4759 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Jitender Singh and others ......Respondent(s) (RSA No.4970 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Smt. Savitri Devi ......Respondent(s) (RSA No.4972 of 2009)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Digh Ram ......Respondent(s) (RSA No.287 of 2010)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Ramesh Chander ......Respondent(s) (RSA No.304 of 2010)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Umed Singh ......Respondent(s) (RSA No.306 of 2010)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Rajinder Kumar ......Respondent(s) RSA No.4755 of 2009(O&M) 3 (RSA No.307 of 2010)(O&M) Municipal Council, Bahadurgarh District Jhajjar ......Appellant(s) Versus Dal Chand ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.K. Gupta, Advocate for the appellant. Rakesh Kumar Garg, J. This judgment shall dispose of fifteen appeals i.e. RSA Nos.4755, 4748, 4752, 4753, 4754, 4756, 4757, 4758, 4759, 4970, 4972 of 2009 and 287, 304, 306 and 307 of 2010. All these Regular Second Appeals have arisen out of one common judgment and decree dated 22.12.2008 passed by the District Judge, Jhajjar, vide which the appeals filed by the appellant-Municipal Council against the common judgment and decree dated 7.2.2007 passed by the Court of Additional Civil Judge (Senior Division), Bahadurgarh decreeing the civil suits bearing Nos.36 to 48 of 2003, 58 of 2003 and 74 of 2003, have been dismissed. Since all these appeals arise out of one common judgment arising out of similar facts and involve similar substantial question of law, the same are being decided by this common judgment. The respondents, who were the plaintiffs in the civil suits, claiming themselves to be owners in possession of their houses/shops constructed on plots of different sizes comprised in Khasra Nos.2144, 2150, 2151, 2251 and 2160 situated at New Nazafgarh Road, Dharampura within the Municipal Limits of Bahadurgarh have filed their respective suits praying for a decree for declaration to the effect that notices dated 5.3.2003 served upon them by the appellants in respect of construction over their respective plots were illegal, null and void and were liable to be set aside. The plaintiff-respondent also sought decree for permanent injunction RSA No.4755 of 2009(O&M) 4 restraining the appellant from demolishing the portion of their respective houses/shops shown in the site plan attached with their respective plaints. According to the respondents, they were the owners of their plots in dispute and they had constructed over the same after getting the site plan sanctioned from the appellant. It has been further averred that they have not encroached upon any portion of the land of the appellant and therefore, the appellant had no right to demolish any portion of their houses/shops and the impugned notice dated 5.3.2003 was without any basis. On the other hand, the appellant contested the suits on various legal grounds submitting further that the appellant got conducted demarcation of the Khasra numbers referred to in the plaints from the revenue Authorities in the presence of the plaintiffs. According to the demarcation report dated 14.2.2003 submitted by Office Kanungo, the plaintiff-respondents had encroached some portion of Nazafgarh Road comprised in Khasra numbers as referred to in the plaints and thus, the defendant-appellant had adopted the legal procedure to remove the encroachment made by the plaintiff-respondents. With these averments, the appellant prayed for dismissal of the each suit. The respondents filed replication reaffirming their averments made in the plaints besides controverting the preliminary averments made in the written statement. It is pertinent to mention here that all the aforesaid civil suits were consolidated vide order dated 3.5.2003 and the following common issues were framed by the trial Court in all the civil suits. Both the parties adduced oral as well as documentary evidence in support of their respective averments. Issues No.1 and 2 were decided in favour of the plaintiff- respondents. Issues No.3 to 5 were decided against the appellants being RSA No.4755 of 2009(O&M) 5 not pressed and resultantly suits of the plaintiffs were decreed holding that impugned notices dated 5.3.2003 were illegal, null and void. The appellant was also restrained from demolishing the houses/shops of the plaintiffs on the basis of these notices. It was further held that the appellant shall proceed against the encroachers of the Rasta if any after getting the rasta located/demarcated in the manner as indicated in the judgment. The operative part of the judgment of the trial Court reads as follows: “However keeping in view the public interest involved and peculiar facts and circumstances of the case Municipal Council, Bahadurgarh shall get the disputed Rasta No.2144 located with specific reference to its width from Delhi-Rohtak Road to old Najafgarh Road from Point B to C as shown in 'Akash Sajra Ex.P55, all possible sources within three months from the date of judgment and if any encroachment is found on Rasta No.2144 then it shall proceed against the encroachers as per law to clear the encroachment.” Feeling aggrieved from the impugned judgment and decree passed by the trial Court, the appellant filed appeals challenging the same before the Lower Appellate Court contending that the trial Court erred at law while ignoring the demarcation report Ex.D-20 and thus, came to the wrong conclusion while deciding the issues framed in the consolidated suits. On the other hand, the respondents had contended that they had not encroached upon any portion of Rasta No.2144 as per demarcation report Ex.PW1/D made by the Naib Tehsildar (Accounts), Jhajjar being the Local Commissioner and thus, the findings of the trial Court are correct. RSA No.4755 of 2009(O&M) 6 After considering the arguments raised by the counsel for the parties and considering the material available on record, the Lower Appellate Court came to the conclusion that there was no illegality in the findings of the trial Court. Still not satisfied, the appellant-Municipal Council have approached this Court by filing the instant appeals challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that while decreeing the suit of the plaintiff-respondents, the Courts below have failed to appreciate the material facts that the appellant was taking steps to remove the encroachment of Rasta in accordance with law. The Courts below ought to have considered that the property involved in the suit was a public property and the appellant was acting in public interest. It was further submitted that it has been fully proved on record that the plaintiff- respondents had encroached upon Rasta No.2144 which is a public thoroughfare and the appellant was proceeding in accordance with law in removing the unauthorized encroachments. It was argued by the learned counsel for the appellant that the Lower Appellate Court should have got the land demarcated by appointing fresh Local Commissioner and thus, approach of the learned Commissioner in rejecting the aforesaid application of the appellant and granting them liberty to proceed to remove the encroachments after getting it demarcated was erroneous and thus, the Courts below exceeded its jurisdiction in decreeing the suit of the plaintiff- respondents and therefore, the following substantial questions of law arise for consideration of this Court: “(i) Whether the Courts below are legally justified in discarding the demarcation report of the Local Commissioner (Ex.D1 to D-20) without there being any RSA No.4755 of 2009(O&M) 7 objections or evidence to the effect that demarcation report is against facts existing at the spot? (ii) Whether the demarcation report is to be read into evidence and is to be taken on record in view of the provisions of Order 26 rule 10 CPC and the courts below are legally justified in discarding the demarcation report without there being any objection of the plaintiff- respondent? (iii) Whether the judgment passed by the first appellate court is totally non-speaking, cryptic in nature and is not sustainable being in violation of mandatory provision of Rule 41 Order 30 CPC? (iv) Whether the courts below are legally justified in granting a decree for permanent injunction in favour of plaintiff-respondent when the defendant-appellant is proceeding in accordance with law? (v) Whether the judgment passed by the courts below in decreeing the suit of plaintiff-respondent with liberty to defendant-appellant to get the suit land demarcated without deciding the application for appointment of fresh Local Commissioner is legally sustainable in the facts and circumstances of the case? (vi) Whether the impugned judgment and decree passed by the courts below are illegal, perverse, without jurisdiction, result of misreading of evidence and is not sustainable in the eyes of law in the facts and circumstances of the case?” I have heard learned counsel for the appellant and perused the RSA No.4755 of 2009(O&M) 8 impugned judgment and decrees of the Courts below. It is an admitted fact that the plaintiff-respondents had purchased their respective plots through registered sale deeds and constructed their houses/shops on those plots after getting the site plans sanctioned from the appellant and no objection was ever raised by any authority of the appellant against any of the plaintiff-respondents when the construction of the houses/shops was being raised, though, it was the duty of the Authorities to verify the fact as to whether the plaintiffs had raised the construction as per the sanctioned site plan. The impugned notices dated 5.3.2003 were issued by the appellant on the basis of the report dated 14.2.2003 submitted by the Office Kanungo to the effect that the plaintiff-respondents had made encroachments on the portion of Rasta. Thus, it is clear that it was for the appellant to prove that the plaintiffs had actually encroached upon the portion of the Rasta. However, the appellant has failed to bring any conclusive and cogent evidence to prove this fact. The demarcation report Ex.D-20 relied upon by the appellant was carried out by the Office Kanungo without serving any notice upon the plaintiff- respondents and in their absence. Moreover, the aforesaid report was not legally proved on record of the case as original of the said report was not produced in the Court nor necessary permission for leading secondary evidence was sought. Thus, the aforesaid report of the Local Commissioner is not admissible in evidence and cannot be held binding upon the plaintiffs and the same was rightly ignored by the trial Court. It is well settled that object of appointment of Local Commissioner is not to collect evidence by the Court on behalf of the plaintiff and in fact the object of the local investigation is to elucidate any point which is left doubtful on the evidence taken before the Court. Thus, the local Commissioner is appointed merely to assist the Court, whereas in RSA No.4755 of 2009(O&M) 9 the present case, the appellant has not led any evidence which needs further elucidation. In fact, there is no admissible evidence on record to prove the assertion of the appellant. Moreover, the Court has a discretion to order appointment of a Local Commissioner and the same cannot be claimed as a matter of right and in case the Local Commissioner is not appointed, the party cannot raise the grievance. It was for the appellants to prove their case by adducing evidence in accordance with law which they miserably failed. Thus, no fault can be found with the decree of the Lower Appellate Court whereby the appellant's request for appointment of Local Commissioner was rejected. Moreover, the Courts below while decreeing the suit of the plaintiff-respondents have protected the rights of the appellant while observing that the appellant may proceed against the plaintiff-respondents for removal of encroachments, if any, after getting the Rasta located/demarcated as indicated in the judgment of the trial Court. The appellant has not raised any grievance against the manner of demarcation to be adopted by the appellant as indicated in the judgment. No interference is warranted in the concurrent findings recorded by the Courts below on the basis of appreciation of evidence on record. In view of the aforesaid discussion, I find no merit in these appeals. No other point was argued. No substantial question of law arises in these appeals. Dismissed. Registry is directed to place copy of judgment in connected appeals. March 22, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.4755 of 2009(O&M) 10 RSA No.4755 of 2009(O&M) 11