RSA No.1509 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1509 of 1989 Date of Decision: 8.01.2009 Municipal Committee, Hissar ..Appellant Vs. Shiv Dayal (Dead through L.Rs.) ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.C.B.Goel & Mr.Nitin Jain, Advocates, for the appellant. Mr.Atul Lakhanpal, Sr.Advocate, with Mr.R.S.Chahal, Advocate, for the respondent. Vinod K.Sharma,J. (Oral) This order shall dispose of RSA No.1509 and 1510 of 1989 both titled Municipal Committee Vs. Shiv Dayal as common questions of law and facts are involved in both these appeals. For brevity the facts are taken from RSA No.1509 of 1989. The plaintiff/respondent brought a suit No.301 dated RSA No.1509 of 1989 2 26.10.1982 seeking a decree of injunction prohibitory and mandatory restraining the appellant committee from demolishing the southern portion of the disputed house No. 26/13 situated in Pull Pelian, Hisar as in the disputed portion he has raised one stair-case, one kotha, one water tank in the year 1959 after the purchase of the house in dispute from Custodian Department in the year 1950. The case set up by the plaintiff was that he was occupying the whole house including disputed portion as owner peacefully and now he faced the threat of dispossession as the official of the appellant committee had visited his house on the evening of 25.10.1982 and threatened to demolish the disputed portion. It is also the case of the plaintiff that the disputed portion could not be demolished in view of intervention of inhabitants and thus, suit for injunction. The plaintiff/respondent filed another suit No.309 of 1983 on the same allegations, as that of first suit, on the plea that in spite of the stay having been granted on 25.10.1982, the appellant/committee demolished the disputed portion of his house illegally and forcibly, and raised a wall, this act of defendant/committee was illegal, null and void and not binding on the rights of the plaintiff. In the second suit also prayer made was only for injunction prohibitory and mandatory, and by way of consequential relief plaintiff sought injunction against the auctioning of the disputed portion. The suit was contested by the appellant/committee on the ground that the suit filed was false, frivolous and that the respondent/ RSA No.1509 of 1989 3 plaintiff failed to file the site plan nor he mentioned the correct dimensions and description of the house in dispute. It was also claimed that the suit was bad for want of notice and that the plaintiff/respondent was estopped by his own act and conduct to file the suit. A stand was also taken by the committee that the encroachment made by the plaintiff/respondent stood removed on 25.10.1982 i.e. day before filing of the first suit and thus, the suits have been rendered infrucuous. The plaintiff was already out of possession on the date of filing the first suit, therefore, the first suit as framed was not maintainable. Similarly second suit was also claimed to be not maintainable. On merit, the appellant committee denied ownership and possession of the plaintiff over the house in dispute. Besides this, stand was taken that the disputed portion stood demolished after giving notice to the plaintiff on 25.10.1982. In the replication averments made in the plaint were reiterated. On the pleadings of the parties the learned trial court was pleased to frame the following issues:- “1. Whether the plaintiff is entitled to the relief of injunction on the grounds mentioned in the plaint? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is bad for want of notice u/s 52 of the Haryana Municipal Act and Section 80 CPC, if so what effect? OPD RSA No.1509 of 1989 4 4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 5. Whether the suit has not properly signed and verified for the purpose of court fee and jurisdiction? OPD 6. Whether the civil court has got no jurisdiction to try the present suit? OPD 7. Whether the plaint does not disclose any cause of action, if so to what effect? OPD 8. Whether the suit has become infructuous as alleged in para No. 8 & 9 of the preliminary objection? OPD 9. Relief.” In the second suit one more issue No.9 to the following effect was framed: “9. Whether the suit is barred by the principle of res judicata and Order 2 Rule 2 CPC? OPD” On appreciation of evidence brought on record learned trial court was pleased to hold that the plaintiff was not entitled to the relief of injunction on the grounds taken in the plaint. The finding was recorded by holding that the plaintiff was neither proved to be owner nor in possession of the disputed portion of the house on the date of suit. Learned trial court was pleased to hold that except for the oral statement of ownership and possession plaintiff/respondent failed to produce on record the conveyance deed/allotment letter of the Custodian Department which was claimed to be the document of title in his possession. RSA No.1509 of 1989 5 The learned trial court held that for want of best evidence having not been produced, adverse inference was to be drawn against the plaintiff/respondent. The learned court further held that possession of plaintiff was also not proved. The learned trial court further held that the stand of the plaintiff/respondent that the construction has been raised with the sanction of the Committee stood belied as no documentary evidence was produced in support of this assertion. In view of findings recorded on issue No.1, issue No.2 were decided against the plaintiff/respondent, whereas issues No.3 to 7 were not pressed. Issue No.8 was also decided against the plaintiff/respondent and in favour of the defendant. Consequently the suit was ordered to be dismissed. The learned trial court also held that second suit was hit by provisions of Order 2 Rule 2 and therefore, was not competent and consequently issue No. 9 framed in the second suit was also decided against the plaintiff/respondent. Plaintiff/respondent filed an appeal against the judgment and decree passed by the learned trial court. The learned appellate court affirmed the findings of the learned trial court in holding that the plaintiff failed to prove his ownership. However, the learned lower appellate court held that in view of the stand taken by the Municipal Committee that prior to demolition notices were issued to the plaintiff/respondent, the factum of his possession stood proved, and consequently held that though the plaintiff/respondent was not RSA No.1509 of 1989 6 proved to be owner of the disputed portion of the house but he was in possession thereof. The learned lower appellate court further held that though in a suit for injunction decree of possession cannot be granted, however, by way of mandatory injunction relief could be claimed. The learned lower appellate court held that no prayer for mandatory injunction has been made by the plaintiff/respondent. In spite of the said finding learned lower appellate court reversed the findings of learned trial court on issue No.1 and consequently decreed the suit of the plaintiff/respondent for possession though no such prayer was made. Mr.C.B.Goel, learned counsel appearing on behalf of the appellant contends that following substantial questions of law arise in this appeal for consideration:- 1. Whether the court can grant a decree for possession in a suit for prohibitory injunction though no such relief is claimed in the suit? 2. Whether in the facts and circumstances of the case suit for possession, would be barred for want of notice under section 52 of Haryana Municipal Act? 3. Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of evidence brought on record? RSA No.1509 of 1989 7 The contention of the learned counsel for the appellant is that substantial questions of law as framed deserve to be answered in favour of the appellant as the suit filed by the plaintiff was not for possession but only for injunction, which had been rendered infructuous in view of the concurrent findings recorded by the learned courts holding that the disputed portion of the house stood demolished on 25.10.1982 i.e. prior to filing of the suit. The contention of the learned counsel for the appellant, therefore, is that with demolition of disputed portion the possession came to Municipal Committee as both the courts below have held that the plaintiff/respondent had failed to prove his ownership. There is force in the contention raised by the learned counsel for the appellant. It may be noticed that specific stand was taken by the plaintiff that disputed portion of the house was demolished by the Committee though claimed to be after the grant of stay, still in the second suit the plaintiff did not seek the decree of possession but again filed suit for injunction, with no prayer for possession. This is not a bona fide mistake or error but an intentional attempt to avoid notice under section 52 of the Haryana Municipal Act as before filing a suit for possession plaintiff was required to issue notice which is exempted in case the claim is only of injunction. Furthermore, that in order to seek possession, the plaintiff was required to prove his ownership. RSA No.1509 of 1989 8 The first substantial question of law as framed is answered in favour of the appellant and it is held that the learned lower appellate court was not justified in passing a decree for possession, in favour of the plaintiff/respondent, even though there was no such prayer, or case set up either in the pleadings, or in evidence to seek possession. In view of the finding recorded above, second substantial question of law also deserves to be answered in favour of the appellant. The suit for possession or declaration in the absence of notice under section 52 of the Haryana Municipal Act is not competent. Therefore, the learned lower appellate court was not justified in passing a decree for possession. On the date of filing the first suit the plaintiff/respondent was not in possession and therefore, suit for injunction as framed was not competent. The third substantial question of law framed also deserves to be decided in favour of the appellant, as the evidence brought on record clearly proved that the plaintiff failed to prove his ownership in the property in dispute. Once encroachment was removed and there was no evidence on record to prove ownership, the learned lower appellate court, merely on the basis of notice of unauthorized construction drew presumption against the Municipal Committee regarding possession. The finding is thus outcome of misreading the evidence on record, thus perverse. In any case, the facts proved on record show that on the date of filing of the suit the plaintiff/respondent was not in possession of the disputed property, as the encroached portion stood demolished on RSA No.1509 of 1989 9 25.10.1982 itself and therefore, the finding regarding possession of the plaintiff on the date of filing of the suit is the outcome of misreading of evidence and therefore, perverse. For the reasons stated above, both these appeals are allowed. The judgment and decree passed by the learned lower appellate court is set aside and that of the learned trial court restored with no order as to costs. 8.01.2009 (Vinod K.Sharma) rp Judge