R.S.A. No. 2822 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2822 of 2008 Date of Decision: 10.07.2009 Raghbir son of Sehraj Ram, r/o village Sisar Khas, Tehsil Meham, District Rohtak. ... Appellant Versus 1. Maha Singh (Sarpanch) son of Hazari, r/o village Sisar Khas, Tehsil Meham, District Rohtak. 2. Joginder son of Nafe, r/o village Sisar Khas, Tehsil Meham, District Rohtak. 3. Gram Panchayat, village Sisar Khas, through its Sarpanch Maha Singh. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kulvir Narwal, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 30.03.2007, rendered by the Court of Additional Civil Judge (Senior Division), Meham, vide which, it dismissed the suit of the plaintiff/appellant, for permanent injunction, and the judgement and decree dated 27.05.2008, rendered by the Court of Additional District Judge, R.S.A. No. 2822 of 2008 2 Rohtak, vide which, it dismissed the appeal, against the judgement and decree of the trial Court. 2. Shorn of unnecessary details, the facts of the case, are that, the plaintiff/appellant, being a resident of village Sisar Khas, village of his forefathers, was having share, in all the lands of shamlat. He claimed himself, to be the owner, in possession of house, detailed, in the para No. 2 of the plaint, and shown, in the site plan. In front of this house, there is a portion, shown by letters LKIG, in red colour, in the site plan, of about 3 ft., which was constructed, by him, 35 years before the filing of the suit, in the shape of pushti (supporting wall, alongwith the construction of his house). It was further stated that his windows and ventilators, were in existence, in the southern wall i.e. towards the portion shown in red colour. It was further stated that there is 18 ft. wide street, in between his house, and those of defendants No. 1 and 2. It was further stated that defendants No. 1 and 2, in collusion with defendant No.3, raised construction, on a portion of the street, shown by letters ABCD and EFGH, in yellow colour, in the site plan, without any right, title or authority. It was further stated that the defendants/respondents, in collusion with each other, wanted to demolish the construction of the plaintiff/appellant, over portion LKIJ, shown in red colour, in the site plan. They were many a time asked, not to do so, but to no avail. On the final refusal of the defendants/respondents, to resist from their illegal design, left with no other alternative, a suit for permanent injunction, was filed by the plaintiff. 3. The defendants/respondents, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further R.S.A. No. 2822 of 2008 3 pleaded that the suit was bad for want of service, under Section 205 of the Haryana Panchayati Raj Act, 1984. It was further pleaded that the area, in dispute, being a part of the public street, in shamlat deh, vested in defendant No. 3. It was further pleaded that the plaintiff/appellant, had not come to the Court with clean hands, and had suppressed the material facts. It was denied that the plaintiff/appellant, was the owner, in possession of the area, in dispute. It was stated that the dimensions of the area had been wrongly given by the plaintiff/appellant. It was further stated that the plaintiff/appellant, had illegally constructed a chabutra (platform), towards western side of the house, over a portion of the street i.e. area in dispute, belonging to defendant No. 3. It was further stated that defendant No. 3, wanted to remove the encroachment, made the plaintiff/appellant, over a portion of the street, by following the due course of law, so as to construct pucca street. It was further stated that the plaintiff/appellant, being in unauthorized possession of the land, belonging to Gram Panchayat, had no right to claim injunction. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff is entitled for decree of permanent injunction against the defendants, as prayed for? OPP ii) Whether the suit is not maintainable in the present form? OPD iii) Whether the suit is bad for want of legal notice u/s 205 Panchayati Raj Act? OPD iv) Whether the civil court has no jurisdiction to try and entertain the suit? OPD v) Whether the plaintiff has no locus standi or R.S.A. No. 2822 of 2008 4 cause of action to file the present suit? OPD vi) Whether the plaintiff has concealed the material facts from the Court? OPD vii) Whether the plaintiff has estopped from filing the present suit by his own act and conduct? OPD viii) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, dismissed the suit. 6. Feeling aggrieved, an appeal was preferred by the plaintiff/appellant, which was dismissed, by the Court of Additional District Judge, Rohtak, vide judgement and decree dated 27.05.2008. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the appellant, and have gone through the documents, on record, carefully. 9. The Counsel for the plaintiff/appellant, submitted that the Courts below, were wrong, in dismissing the suit, by relying upon the report of the Local Commissioner, exhibit D2. He further submitted that the reliance was also placed by the Court below, on exhibit D20, the alleged compromise, before the Police. He further submitted that this document, could not be taken into consideration, as the same, was beyond pleadings. It was further submitted that the plaintiff/appellant, had not encroached, upon any portion of the street. On the other hand, it was submitted, that Sarpanch, Maha Singh, and Joginder Singh, defendants/respondents, encroached upon the street, and made it narrow. He further submitted that the judgements and decrees of the Courts below, being illegal, and perverse, were liable to be set-aside. R.S.A. No. 2822 of 2008 5 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the plaintiff/appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. To find out, as to, on how much area, of the street, the encroachment had been made, by the plaintiff, a Local Commissioner, was appointed by the trial Court. The Local Commissioner, went to the spot, and after due notice to the parties, inspected the same and prepared his report exhibit D2. According to report D2, it was established, that the plaintiff/appellant, had constructed a chabutra (platform), in the public street recently. It was also proved, from the report of the Local Commissioner, that the plaintiff/appellant, had constructed 4 inch wall, towards the western side of his house, which was 1 ½ feet high. This fact, was also admitted by the plaintiff/appellant, in his cross-examination, while appearing as PW1. D20, was the compromise, which was also relied upon, by the Courts below. From this document, it was established, that an application dated 17.10.2005, was sent by the plaintiff/appellant, to the Station House Officer, Meham, wherein, it was undertaken by him that he would remove the recently raised wall. This document, therefore, confirms the report of the Local Commissioner, D2, that wall had been raised, by the plaintiff/appellant, in the street. The concurrent findings of fact, recorded by the Courts below, that plaintiff/appellant, raised the construction of chabutra (platform), and a wall, in the public street; that he was in unauthorized possession of the public street; that the defendants/respondents, were going to remove the encroachment, in accordance with the provisions of law; and that, as such, the plaintiff/appellant, was not entitled to the injunction prayed for, being based, on the correct appreciation of evidence, and law, on R.S.A. No. 2822 of 2008 6 the point, warrant no interference. The Courts below, were, thus, right in dismissing the suit. The submission of the Counsel for the plaintiff/appellant, being without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises, in this appeal, for the determination of this Court. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same, is dismissed, with costs. 10.07.2009 (SHAM SUNDER) Amodh JUDGE