IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.9018-C of 2009& RSA NO.3017 OF 2009 DECIDED ON : 17.08.2009 Municipal Corporation, Bathinda ...Appellant versus Madan Lal & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Lajwant S.Virk, Advocate for Mr.R.S.Khosla, Advocate for the appellant. AJAY TEWARI, J. (ORAL) This appeal has been filed against the judgments and decrees of the Courts below whereby the suit of the respondents for permanent injunction restraining the appellant from demolishing their wall has been decreed. The following questions have been proposed in this appeal: i) Whether a corporation cannot recover its encroached property without paying compensation to the encroacher? ii)Whether the learned District Judge was right, in the instant case, not to apply his mind to the crux of the matter viz. Whether there was misalignment of the street on the side of the then plaintiff's property or was it on the opposite? iii)Whether the learned District Judge was right in saying that to see if a portion of the street has been encroached upon the measurement of the entire area of the planned scheme ought to have been done? iv)Whether a Municipal Corporation can get demarcation of plots done through its own staff or the term demarcation done RSA No.3017 of 2009 -2- through revenue authorities? iv)Whether in the instance case, it was proper for the learned District Judge to draw no interference from the fact that the area of the property claimed by the then plaintiff's did not tally with the area in the sale deed? The main fact which has influenced the Courts below is that the plaintiffs had filed civil suit No.306 of 18.09.1993 in respect of the disputed property with regard to certain earlier notices for demolition. The said suit was decreed in the following terms: “As stated above, the appellant-defendant did not lead any evidence to show that the plaintiff has encroached any part of the land of the appellant- defendant. If on demarcation, it is found that respondent; plaintiff has encroached any land of the appellant-defendant, then the committee shall be at liberty to recover the possession as per provisions of law and not on the basis of notices Wxs.p.6 to p.8 dated 14.09.1993.” Both the Courts below have found that the appellant did not place on record any subsequent demarcation report to justify its stand that the respondents had in fact encroached upon the 40' wide street. Learned counsel has sought to rely upon the fact that even in the site plan for construction of building, 40' wide street was clearly shown by the respondents and the same was sanctioned by the Government. However, the Lower Appellate Court has correctly considered this fact and held that RSA No.3017 of 2009 -3- this fact by itself would not prove encroachment. In my opinion also the finding of the Courts below that the Corporation-appellant would be at liberty to take action as per law after getting the demarcation report in consequence of earlier suit, cannot be faulted since that would be the direct evidence of encroachment. In these circumstances I hold that the questions proposed in this appeal do not arise and consequently dismiss the appeal and application for stay. August 17, 2009 (AJAY TEWARI) sonia JUDGE