R.S.A. No. 168 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 168 of 2007 Date of Decision: 14.07.2009 Pritam Singh son of Sh. Chamela r/o village Sasauli, Tehsil Jagadhri, Distt. Yamunanagar. ... Appellant Versus 1. Executive Engineer, Public Health, Nehru Park, Yamunanagar. 2. Sub Divisional Officer, Public Health, Nehru Park, Yamunanagar. 3. State of Haryana, through Collector Yamunanagar. 4. Yash Pal, Junior Engineer, Public Health, Nehru Park, Yamunanagar. 5. Surinder Malik, Supervisor, Public Health, Nehru Park, Yamunanagar. 6. Hav Raghunath, posted in Police Station Farakpur, District Yamunanagar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Budhwar, Advocate, for the appellant. Mr. Vivek Lamba, Assistant Advocate General, Haryana, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, R.S.A. No. 168 of 2007 2 dated 05.09.2006, rendered by the Court of District Judge, Yamunanagar, vide which, it accepted the appeal, and set aside the judgement and decree dated 01.10.2004, rendered by the Court of Additional Civil Judge (Senior Division), Jagadhri, vide which, it decreed the suit of the plaintiff/appellant. 2. The plaintiff/appellant claimed himself to be the owner of the land, in dispute. It was stated that the defendants/respondents, had no right, and title, in the property, but they proposed to dig the area, to lay sewerage pipe unauthorizedly. It was further stated that the land had not been acquired by the State, in public interest. It was further stated that the berms of the metalled road, were available, to the defendants, to lay the sewerage pipeline, instead of unauthorizedly interfering into the possession of the plaintiff/appellant, over the land, owned by him. It was further stated that, despite the injunction order, passed by the Court, the defendants laid a sewerage pipe, in the land of the plaintiff/appellant. Accordingly, a suit for mandatory injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that there existed a metalled road, for the use and benefit of the inhabitants of the residential colony. The underground sewerage pipe, had been laid, adjacent to the metalled road, comprising khasra No. 35//3/2, which abutted the houses of the inhabitants of the area. It was further stated that no land owned by the plaintiff/appellant, had been used for the purpose aforesaid. It was further stated that the site plan, was got duly approved, before the sewerage pipe, was laid. It was further stated that the suit, was not maintainable. R.S.A. No. 168 of 2007 3 4. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff is owner in possession of the suit land? OPP ii) Whether the plaintiff is entitled to injunction as prayed for? OPP iii) Whether the suit of the plaintiff is not maintainable? OPD iv) Whether the plaintiff has no locus standi to file the present suit? OPD v) Whether the plaintiff has no cause of action for filing the present suit? OPD vi) Whether the defendants are entitled to special cost under Section 35A of C.P.C.? OPD vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, decreed the suit of the plaintiff/appellant. 6. Feeling aggrieved, an appeal, was filed by the defendants, and the cross-objection/cross appeal, was filed by Pritam Singh, plaintiff. The Court of District Judge, Yamunanagar, accepted the appeal, filed by the defendants, whereas dismissed the cross-appeal, filed by Pritam Singh, plaintiff. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by Pritam Singh, plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the documents and record of the case, carefully. 9. From the perusal of the judgements of the Courts below, it is evident that, Pritam Singh, was not the sole owner of the property, R.S.A. No. 168 of 2007 4 comprising khasra No. 35//3/1 and 35//4. He had only 1/7 share, in the said property. His two brothers namely Ajmer Singh, and Bal Kishan, also had 1/7 share each, in khasra No. 35//4 (8-0). Both of them sold 19 ½ marlas each of land, for valuable consideration, to different persons. It means that the land, which was purchased by the three brothers, was fragmented into small plots. At the time of filing the suit, there was a 22 ft. wide strip of land, which was being used, as a street, by the owners of those plots. This fact, was not pleaded by the plaintiff/appellant, in his plaint. On the other hand, the plaintiff/appellant, stated in the plaint, that this 22 ft. wide strip of land, was his private property. The property, in dispute, falls within the limits of the town. Section 2(33) of the Haryana Municipal Act, 1973, lays down, that to make a site to be a street, it must be shown, that it was being used by the persons, as a means of access to or from any public place or thoroughfare. Since 22 ft. wide strip of land, never remained, under the control of the owners, they had no right, to prevent the public, from using the same. According to Section 2(33) of the Haryana Municipal Act, 1973, when the owner of the property has by his own volition, permitted his property to be converted into a street, then he has no right, to claim any compensation, when the same property, is made a public street, under Section 171(4) of the Act. It was the case of the defendants, that the sewerage pipeline, had been laid, in the land, comprising rectangle No. 29, khasra No. 18/2 (0-10), 23/2 (0-16), rectangle No. 35, khasra No. 3/2 (0-16), 8/1 (0-16), 13/5 (1-6), 18/5 (1-6), and 23/5 (0-16). The metalled road connects the houses of the residents of the area, and the sewerage pipeline, had been laid, on the berms of the said metalled road. The First Appellate Court, was, thus, right in holding, that since no area comprising rectangle R.S.A. No. 168 of 2007 5 No. 35, khasra No. 3/1, and 4, had been used by the defendants, for laying the sewerage pipeline, the plaintiff/appellant, could not say, that his private land, had been utilized by the defendants, for that purpose. The First Appellate Court, was, thus, right in holding, that since the sewerage pipeline, had not been laid, in the land of the plaintiff/appellant, he had no locus standi, to file a suit for mandatory injunction, for the removal of the same, which had been laid on the berms of the metalled road, being used by the public, at large, for ingress and egress. The findings of the fact, recorded by the first Appellate Court, in this regard, being based, on the correct appreciation of evidence, do not suffer, from any illegality, or perversity, and, therefore, warrant no interference. 10. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 11. For the reasons recorded above, the Regular Second Appeal, being devoid of merit, must fail, and the same, is dismissed. 14.07.2009 (SHAM SUNDER) Amodh JUDGE