RSA No.3161 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3161 of 1984 Date of decision:15.2.2011 Smt. Balwant Kaur ...Appellant Versus Punjab Wakf Board and another ...Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Kuldip Singh, Advocate, for the appellant. Mr.Jai Bhagwan, Advocate, for the respondents. JITENDRA CHAUHAN, J. (Oral) 1. The present appeal is directed against the judgment and decree dated 10.11.1984 passed by the learned Additional District Judge, Narnaul, allowing Civil Appeal No. 20 of 22.3.1984 titled Punjab Wakf Board Vs. Smt. Balwant Kaur' whereby the judgment and decree dated 22.12.1983, passed by the learned trial court, vide which the suit of the plaintiff was decreed, was set aside. 2. The facts as projected by the appellant/plaintiff Balwant Kaur are that she purchased plot No.332/1 from Custodian Department, in an open auction vide sale deed dated 2.2.1977. The doors of the said plot open in a passage, which is being exclusively used by her. It is further the case of the appellant that the defendants/respondents, namely, Punjab Wakf Board, Ambala Cantt and Administrator, Punjab Wakf Board, wrongly allotted an RSA No.3161 of 1984 2 area measuring 18’ x 18’ to Arjun Dev son of Jethu Ram, alleging the same to be the part of mosque. However, the appellant/plaintiff alleged that the area was wrongly allotted to the defendants as the said area is situated at a long distance from mosque no.7900 and the same is situated adjacent to mosque no. 3752. It is further the case of the plaintiff that she moved an application through her attorney Sh.Manna Singh complaining the said wrong allotment to Arjun Dev, whereupon, defendant No.1 cancelled the said allotment. However, it was informed to the plaintiff vide letter no. 1477 dated 4.8.81 that the same shall be used exclusively in connection with mosque no.7900. On that the plaintiff through her attorney brought to the notice of defendant/respondent no.1 vide registered notice dated 2.9.1981 that the disputed area measuring 18’ x 18’ was not a part of mosque no.7900 rather the same is being used as passage by her and as such the defendants/respondents have no right or title over the same. 3. The defendants/respondents contested the suit of the plaintiff. In the joint written statement filed by the defendants, they denied the assertion of the plaintiff that she ever purchased any plot from custodian department. The defendants admitted that the plot, which was earlier allotted to Arjun Dev, was cancelled. However, they denied that the same was cancelled on the application of Manna Singh (attorney of plaintiff). The defendants took preliminary objections in their written statement that the plaintiff has no locus standi to file the suit; the same was not maintainable and the suit was bad for non joinder and misjoinder of necessary parties. On that, the plaintiff filed replication reiterating the allegations made in the plaint and controverting the averments taken in the RSA No.3161 of 1984 3 written statement. 4. On the pleadings of the parties, following issues were framed by the learned trial Court, which read as under:- 1. Whether the suit in dispute is a passage as alleged? OPP 2. Whether the plaintiff is entitled to the injunction prayed for? OPP 3. Whether the court fee has not been correctly affixed? OPD 4. Whether the plaintiff has no locus standi to sue? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit is bad for want of legal notice? OPD. 7. Whether the suit is bad on account of non joinder and misjoinder of parties? OPD. 8. Relief. 5. The plaintiff examined her attorney Manna Singh as PW2, who deposed that site in dispute is a passage. He further deposed that the disputed land was previously allotted to Arjun Dev but allotment was cancelled by the defendants on his application. Krishan Lal Sharma, PW1, identified the signatures of his father Mool Chand, as he was a professional deed-writer, on site plan Mark `A’. In her cross-examination, he admitted that he did not visit the site in dispute. Sukhdev Singh, Ahlmad, PW4, is a formal witness and he only produced the requisitioned file. Kailash Chand Sanghi, Draftsman, PW5, certified the correctness of site plan as enclosed in requisitioned file titled `Om Parkash Vs. Municipal Committee’. F.C.Garg, RSA No.3161 of 1984 4 Junior Engineer, PWD (B&R), PW6, deposed that he was appointed as Local Commissioner by S.D.M., Narnaul, in case titled Manna Singh Vs.Arjun Dass under Section 133 Cr. P. C. and prepared the site plan and report respectively. He certified the correctness of Exhibit PW6/B, the attested copies of his said report and site plan, Exhibit PW6/A. He admitted that he had not seen the documents pertaining to the ownership of the site in dispute. Dharam Vir Ali, Clerk, Punjab Wakf Board, PW7, certified the correctness of Ex.PW7/A and Exhibit PW7/B. 6. Mohmad Saddique, an Officer of Wakf Board Office, Sangrur, DW1, deposed that site in dispute vests in Punjab Wakf Board, which was previously let out to Arjun Dev. He further deposed that site in dispute is a part of mosque No.7900. 7. The learned trial Court after appreciating the evidence and considering the contentions of learned counsel for the parties observed that the defendants did not specifically mention in their written statement that the instant suit is bad for non joinder of necessary parties. Therefore, it was not legally necessary to implead said Arjan Dev and Om Parkash in the instant suit. The learned trial Court further observed that the defendants could not successfully prove by leading any documentary evidence as to whether the disputed passage is a part of mosque no.7900. The learned trial Court also observed that suit in dispute is neither a part of mosque no.3752 nor mosque no.7900. Accordingly, the learned trial Court held that site in dispute forms part of a passage and same is being used by the plaintiff and hence decided issue No.1 in favour of the plaintiff and against the defendants. RSA No.3161 of 1984 5 8. Issue No.2 was deleted with the consent of both the parties as there was no specific prayer of the plaintiff for grant of any sort of injunction. Issues No. 4,5 and 6 were not touched either by the plaintiff or by the defendants during the course of arguments. These issues were decided in favour of the plaintiff and against the defendants. 9. As regards issue No.7, the learned trial Court reiterated the finding as observed in issue no.1 and accordingly, this issue was answered in favour of the plaintiff and against the defendants. 10. Aggrieved against the judgment and decree of the learned trial Court, the respondents preferred an appeal, wherein, the learned first appellate Court observed that it is not disputed that Om Parkash and Punjab Wakf Board is not bound by the actions of Jhangi Ram, a neighbourer, and in case the land shown by him in sanctioned plan, Exhibit PW5/A, as a street is owned by the Punjab Wakf Board then merely because he has shown it to be a street in the sanctioned site plan, Exhibit PW5/A, got prepared by Jhangi Ram, neighbourer, on 7.2.1965 from Kailash Chand Sanghi, PW5, it will not convert it into a street and the Punjab Wakf Board will not lose its rights over it. The disputed portion which has been shown in the sanctioned site plan, Exhibit PW5/A, by Jhangi Ram, neighbourer, as a street was not required to be shown under any rules and only that portion on which the construction proposed by him was required to be shown in the site plan. The learned first appellate court further observed that if the disputed land is a street then the relevant record must be in existence with the Municipal Committee but as deposed by Jaswant Rai Ahuja, DW1, there is no such record. The learned first appellate court also observed that it was RSA No.3161 of 1984 6 for the municipal committee to prove that the disputed land is owned by it or it is a street. However no documentary evidence has come on record to establish except the site plan which cannot be said to be a record of the Municipal Committee for a street or ownership. The site plan, Ex.PW5/A, submitted by Jhangi Ram cannot be used to declare the disputed site as a street Accordingly, the learned first appellate Court set aside the judgment and decree of the learned trial Court and held that the disputed land is not the street. 11. Hence the present appeal. 12. Learned counsel for the appellant has submitted that the learned appellate court fell into an error by holding that it cannot be said that the disputed site is a street by ignoring sanctioned site plan, Exhibit PW5/A, dated 7.2.1965. It is old document. This litigation started in the year 1982. So the consideration of this site plan, Exhibit PW5/A got sanctioned by Jhangi Ram from Municipal Committee, Narnaul, on 23.4.1965 before raising construction of his house, is relevant for proper adjudication of the case. It has also been submitted that in cross-examination, Sh. F.C.Garg, PW6, has admitted that he did not see any documents pertaining to the ownership of the site in dispute. 13. It has further been submitted that the site plan, Exhibit PW5/A, is a conclusive proof, which suggest that land in dispute is a passage as the same site plan was submitted by one Jhangi Ram for seeking permission for construction of house. 14. On the other hand, learned counsel for the respondent has stated that site plan, Exhibit PW5/A, which was relied upon in adjudicating RSA No.3161 of 1984 7 the matter between Jhangi Ram and Municipal Committee, cannot be considered in the instant case. It is for the appellant to prove his case. The appellant cannot take any benefit of the finding recorded by the learned trial court that respondent No.1 could have proved its ownership, whereas the onus was on the appellant to prove that site in dispute is a passage, as per the issues framed by the learned trial Court. Learned counsel has also submitted that the appellant court has rightly set aside the findings recorded by the trial Court, which were against the record. 15. I have heard the learned counsel for the parties and perused the record with their able assistance. 16. The main question in this appeal for decision is as to whether the lower appellate court has erred in holding that the disputed land is not a street. 16. Learned trial court has decreed the suit of the plaintiff on the ground that the respondents had sufficient opportunity to prove their title. However, from the perusal of the issues framed, it is clear that onus was on the plaintiff to prove that site in dispute is a passage which she failed to discharge it. The only argument raised by learned counsel for the appellant is that site plan, Exhibit PW5/A has not been relied upon by the learned appellate court. I am of the considered view that the learned appellate court has rightly not considered the site plan, PW5/A, which was submitted by Jhangi Ram in the Municipal Committee. In the statement of Kailash Ram Sanghi, PW5, Draftsman, it has come that he has not seen any documents of ownership and the site plan was prepared at the instance of Jhangi Ram. As such, no authentic document with regard to the street shown in site plan has RSA No.3161 of 1984 8 come on record in the instant case. As per the site plan showing the house of appellant, width of the street is only 3 ½ feet while the disputed land which is at some distance from the house purchased by Balwant Kaur is about 18 x 18 yards which is being claimed to be a street. It is relevant to refer the statement of Jaswant Rai Ahuja, DW1, who has stated that in the Municipal Committee, there is no property register to show that the disputed site is a street. This Court is of the considered view that Punjab Wakf Board, respondent No.1, is not bound by the actions of Jhangi Ram. In a site plan, Ex. PW5/A, the land was shown as a path or street but the same cannot be taken as conclusive proof thereof. There is no other documentary evidence on record to establish that the site in dispute is a street except site plan, Exhibit PW5/A, which cannot be relied upon. Therefore, the lower appellate court has rightly held that the disputed land is not a street. No substantial question of law arises for determination in the second appeal. 17. In view of the above, no interference is called for in the findings of the learned first appellate court. Accordingly, the instant appeal is dismissed. 15.2.2011 (JITENDRA CHAUHAN) Mk JUDGE Note: Whether to be referred to the Reporter? Yes / No