Criminal Misc. No. 30423-M of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 30423-M of 2006 Date of decision:- 28.7.2008 Gurbakshish Singh and others ...Petitioners. Versus State of Punjab and another ...Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. D.S. Dalee, Advocate for the petitioners. Mr. Anter Singh Brar, DAG, Punjab. Mr. V.K. Garg, Advocate for respondent no.2. RAJESH BINDAL J. Challenge in the present petition is to the order passed by learned Additional Sessions Judge (Adhoc), Fast Track Court, Sangrur dated 21.3.2006 whereby the order passed by learned Sub Divisional Magistrate, Sangrur dated 24.3.2003 in an application under Section 133 Cr.P.C. has been reversed. Respondent No. 2 filed an application before Sub Divisional Magistrate for removal of construction in Khata No. 108/758 khasra no. 460/90 area 0-3 estate area Alloarkh in street. The application was filed with the allegations that the area in question is a part of public street which has been illegally occupied by the petitioners which is causing public nuisance. The application was contested by the petitioners stating therein that the respondent does not have approach to his residence through the alleged street as his house abuts street on the other side. The petitioners are in possession of the area since long and it is not causing any public nuisance. On consideration of the material on record the application was Criminal Misc. No. 30423-M of 2006 2 dismissed by learned Sub Divisional Magistrate. In a revision filed by the respondent no.2, the learned Additional Sessions Judge reversed the order passed by learned Sub Divisional Magistrate and directed the removal of the encroachment/public nuisance created by the petitioners within one month of the passing of the order failing which legal course was to be followed. Reiterating the submissions which were already made by the petitioners before the courts below, mainly that the alleged encroachment is not causing any public nuisance, the area in question was purchased from one Sadhu Singh in the year 1994 and is in possession of the petitioners since then, it was further submitted that the area in question falls in a street and towards the end thereof the house of petitioner no.5 is situated and infact the area is in front of the house and is part and parcel thereof. After the same had been purchased from Sadhu Singh in the year 1994, the area is used for keeping the cattles. Learned counsel for the State supported the claim made by the petitioners and submitted that the area does not fall in the street and is not causing any public nuisance. Learned counsel for respondent no.2 contested the claim made by the petitioners. It is submitted that the area encroached by the petitioners is part of public street bearing khasra No. 460/90. The house of respondent no.2 on one side abuts that street. Infact the Gram Panchayat had constructed drainage (Nallies) up to the house of respondent no.2, however, the same were demolished by the petitioners on 13.6.2002 and since then respondent no.2 is having grouse that the petitioners had encroached upon the public street. When no positive step was taken by any of the authority, the application was filed before the Sub Divisional Magistrate on 28.6.2002. He further submitted that even in written reply filed by the petitioners it is not denied that the area in question is a part of a public street all what is sought to be claimed is that the same is in possession of petitioners since long and on account of long possession the executive court is not competent to dispossess them. He further submitted that in the evidence before the Sub Divisional Magistrate it had come on record that the claim as set up by the petitioners that the land in question was purchased from Sadhu Singh could not be proved, as RW-3 Bhagwan Singh, Ex-Sarpanch admitted in his cross examination that Sadhu Criminal Misc. No. 30423-M of 2006 3 Singh was never in possession of the land in question. He further admitted that he noticed a gate at the site when the dispute between the parties arose and not before that. Finally it is submitted that the impugned order passed by the learned Additional Sessions Judge is strictly in conformity with law and deserves to be upheld. After hearing learned counsel for the parties and perusing the documents on record I do not find any merit in the submissions made by the learned counsel for the petitioners. As is noticed by the learned Additional Sessions Judge in the impugned order that even the petitioners admitted that they are in possession of the property it is not disputed that it is a part of public street. It could not be proved on record by the petitioners that the land in question was purchased by them from Sadhu Singh in 1994, as firstly the possession of Sadhu Singh in 1994 could not be proved and further no sale deed has been produced on record showing transfer of ownership of land. The plea set up by the petitioners in the written statement that they are in possession of the land in question for the last 17- 18 years was falsified by their own evidence when it was claimed that infact the land in question was purchased in 1994 from Sadhu Singh. Copy of the site plan, Ex.P-2, has been produced showing the disputed portion. Perusal thereof shows that the same falls towards the end of the close street, abutting the house of respondent no.2 though he has approached to his house from the other side in a street but still a portion of house abuts the area which is under encroachment. It is the portion of the street towards the end which has been encroached upon by the petitioners and the case set up by them to claim ownership thereof could not be proved. For the reasons mentioned above I do not find any merit in the present petition and the same is dismissed. July 28 , 2008 (RAJESH BINDAL) ritu-II JUDGE