RSA No. 4226 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 16 , 2009 1. RSA No. 4226 of 2008 (O&M) Rajinder Singh vs. Municipal Councillors, Municipal Committee, Thanesar and others 2. RSA No. 4227 of 2008 (O&M) Rajinder Singh vs. Municipal Council, Thanesar and another Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.S.N.Gaur, Advocate for the appellant. Mr.Namit Gautam, Advocate, Mr.Vikas Gupta, Advocate and Mr.Vivek Salathia, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This order shall dispose of two Regular Second Appeals bearing Nos. 4226 of 2008 and 4227 of 2008 since they involve the same parties and the dispute is also the same. RSA No. 4226 of 2008 arises from a civil suit filed by the appellants claiming injunction against Municipal Council, Thanesar as well as the private respondents restraining them from showing the disputed property as a path. RSA No. 4226 of 2008 (O&M) 2 RSA No. 4227 of 2008 arises from a civil suit filed by the private respondent for a mandatory injunction directing the Municipal Council to pass her plan showing the disputed property as a Gali and thereby allowing her ingress and egress therefrom. Both the suits were consolidated and tried together and ultimately the suit filed by the appellant was dismissed while that filed by the private respondent was decreed. It is against these concurrent judgments that these appeals have been filed. The following questions have been proposed:- i) Whether all the issues framed separately in consolidated civil suits have to be decided separately and independently? ii) Whether a site plan got sanctioned fraudulently carries any legal sanctity? iii) Whether every open space which is private property of a person, can be called s street? iv) Whether the evidence beyond pleadings can be relied upon? v) Whether the existence of street or nature of property as street, is to be proved by one who asserts it to be so? The seminal issue is that the appellant has not been able to prove his ownership of the land in dispute. Apart from that even in the suit filed by the appellant the claim is that the property in issue was a private Gali. Learned counsel has argued that even if the appellant could not prove his exclusive ownership yet in view of his admitted possession over the property in dispute the same could not have been allowed to be used by the private respondents as a means of ingress and egress. He has relied upon Municipal Corporation of Ludhiana v. Oswal Spinning and Weaving Mills Ltd. Reported s 1991 PLJ 480 wherein it was held as follows:- “6. ................................................................................. ................................................................................ RSA No. 4226 of 2008 (O&M) 3 ............................................................................................ A reading of both the definitiones,'public street' and 'street' makes it clear that every vacant space cannot be described as a 'street.' It must be vacant space where houses, shops or other buildings abut thereon and if it is used by any person as a means of access to or from any public place or thoroughfare but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using. If the vacant plot satisfied that description, it can be considered as a 'street'. However, every street cannot be said to be a 'public street'. Before a street can be said to be a public street, it must have been levelled, paved, metalled , channelled, sewered or repaired out of municipal or other public funds or it must have been declared by the committee or should have become, under the Act, a 'public street'. These conditions have to be satisfied before the vacant plot can be identified as a 'public street'. The said judgment defines what is a 'street' and a 'public street'. The second judgment replied upon by the learned counsel is Lakhbir Singh . Mewa Singh and others reported as 2002(1) PLR 843. In that judgment it was held as follows:- “7. After hearing the learned counsel for the parties, I am of the considered opinion that there is no merit in this appeal. The onus was upon the plaintiff to prove the best evidence under Section 133 of the Evidence act. The plaintiff was supposed to maintain a record with regard to the public street and also with regard to the fact as to how much amount has been spent by the plaintiff on the pubic street. There is nothing to suggest that at any point of time the Municipal Committee declared the disputed RSA No. 4226 of 2008 (O&M) 4 passage as public street or any construction was raised on the disputed passage. Rather the statement of PW1 that Municipal Committee constructed the drain in front of the house of the respondents that statement will not advance the case of the appellant/plaintiff because this witness has not uttered any word to the effect that the alleged street vests in the Municipal Committee. The first appellate Court has taken into consideration the entire evidence led by the parties in this regard. I do not want to differ with the same. Resultantly, there is no merit in this appeal. Dismissed.” The third judgment relied upon by the learned counsel is Banwari Lal and other v. Municipal Committee, Narnaul reported as 1986 PLJ 653 wherein this Court held as follows:- “4. I have heard the learned counsel for the parties and also gone through the relevant evidence on record. Admittedly, the Municipal committee did not produce any record to show that the site in dispute was shown to be a 'street' in its records. It only produced certain sale deeds Ex.PW3/A, dated 13th November, 1922; Ex.DW7/A dated 15th February, 1957; Ex.DZ/1 dated 21st June, 1960 and Ex.DW5/C dated 20th July, 1961, and on the basis thereof wanted to conclude that the site in dispute was a 'street' and the lower appellate Court also relied upon those sale deeds. The whole approach of the lower appellate Court in this behalf was wrong, illegal and misconceived. From the said sale deeds , it is nowhere proved that the site in dispute was a street as claimed by the Municipal Committee. Apart from that, there is no other independent evidence produced by the Municipal Committee to show that the site in dispute was a street. Moreover, the trial Court after discussing the RSA No. 4226 of 2008 (O&M) 5 oral evidence came to the conclusion that there was no co0gent evidence on record to prove that the site in dispute was being used by the residents of the locality as an open space, and the members of the public had been passing through it without any let or hindrance by the owners thereof and that unless it was proved that the same was being used by the members of the public without any let or hindrance from the plaintiffs and that the people at large had been using the same for having ingress to and egress from the well, the mere fact that the Northern side of the property in dispute was not built did not mean that the same fell within the definition of 'street' under the Haryana Municipal Act, 1973. Surprisingly enough no reference whatsoever has been made by the lower appellate Court on this aspect which was most material and relevant. Thus, viewed from any angle, in the absence of any cogent evidence that the site in dispute was being used as a street, it could not be held that the Municipal Committee was competent to issue the notices PP1 and P2. That being the situation, the notices issued were illegal and without jurisdiction. The Municipal Committee nowhere claimed by virtue of the said notices hat the site in dispute was a street.” In my opinion all the three judgments are not applicable to the case in hand. It cannot be lost sight of that it was the appellant who filed a suit claiming ownership of the property in dispute as a consequence of certain monetary transactions. Both the courts have found categorically that the appellant has not been able to prove his assertion that he is owner of the property in dispute. Learned counsel has not been able to persuade me that these findings of fact are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Once this seminal issue is held against the appellant, the RSA No. 4226 of 2008 (O&M) 6 questions proposed which are peripheral in nature do not arise. Consequently both these appeals as well as the applications for stay are dismissed. (AJAY TEWARI) JUDGE November 16 , 2009 sunita