RSA No.2858 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2858 of 2008 (O&M) Date of decision : 22-7-2009 Maman and another ....Appellants VERSUS Municipal Committee, Samalkha through its Secretary and another ....Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Namit Sharma, Advocate, for the appellants. RAJIVE BHALLA, J. CM No.8445-C of 2008 Allowed as prayed for. CM No.8444-C of 2008 & RSA No.2858 of 2008 The appellants challenge judgments and decrees dated 26-5-2007 and 16-1-2008, passed by the Civil Judge (Jr. Divn.) Panipat and the Addl. District Judge, Panipat dismissing their suit and their appeal. The appellants filed a suit for grant of permanent injunction to restrain the Municipal Committee Samalkha from demolishing their houses. However, as during the pendency of the suit the houses were demolished, the appellants amended the plaint and prayed for grant of a mandatory injunction directing the Municipal Committee to reconstruct the demolished building. In brief, the appellants pleaded that as they had constructed their houses 15 RSA No.2858 of 2008 (O&M) -2- years ago, the Municipal Committee had no right to demolish them. In response, the Municipal Committee filed a written statement alleging that the houses were constructed by encroaching upon vacant municipal land lying between the property owned by the appellants and the main road. In compliance with directions issued by the Hon'ble High Court in CWP No.7639 of 1995 the area was demarcated on 22-09-2000 and it was found that the appellants were in unauthorized possession of vacant municipal land abutting the main road. It was pleaded that demolition was carried out after service of advance notices upon the appellants. After framing issues, and calling upon the parties to lead evidence, the learned trial Court dismissed the suit by holding that the appellants have failed to establish that the demolished structures were raised on land that belonged to them. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. Vide judgment and decree dated 16-1-2008, the Addl. District Judge, Panipat dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellants submits that the appellants constructed their houses 15 years before their demolition. The demolition was carried out without any prior notice and was therefore void. It is further submitted that the Courts below failed to appreciate that the jamabandi for the year 1991-1992 Ex.P-2, reveals that the appellants are owners in possession of the land beneath the demolished houses. As a result, the Courts below have committed an error by holding to the contrary. It is further argued that the RSA No.2858 of 2008 (O&M) -3- demarcation report dated 22-9-2000 is inadmissible in evidence as it is an unattested photostat copy and the Courts below have committed an error by placing reliance on the demarcation report. It is prayed that in this view of the matter, the following substantial questions of law arise for consideration: a) Whether a photo copy of demarcation report for proving the encroachment of land is an admissible piece of evidence? b) Whether an act of demolition of house without giving prior notice of encroachment can be considered in due course of law? c) Whether both the judgments and decress of the courts below are not based upon misappropriation of evidence available on record and the law applicable thereof. I have heard counsel for the appellants, perused the impugned judgments and am of the considered opinion that the substantial questions of law framed by counsel for the appellants do not arise for consideration. Between the land owned by the appellants and the main road lies land owned by the Municipal Committee. The appellants raised structures on this land without any right or authoritiy. I find no reason whether in law or in fact to hold that the Courts below have committed any error in holding that the appellants were in unauthorized possession of Municipal land and therefore the demolition was justified, legal and void. The appellants have failed to produce any evidence in support of their plea that the RSA No.2858 of 2008 (O&M) -4- demolished structures were raised on land that belongs to them. The first question, relates to the admissibility of the demarcation report. The question was neither raised before the trial Court nor before the First Appellate Court and, therefore, cannot be urged for the first time in Second Appeal. The onus to establish that they had raised construction on their own land lay upon the appellants. The argument that the Courts below have ignored the jamabandi has no merit. The appellants have failed to establish that the land referred to in the jamabandi is the land beneath the demolished houses. In my considered opinion, the judgments and decrees passed by the Courts below are legal and valid and as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed. (RAJIVE BHALLA) 22-07-2009 JUDGE manju