RSA No. 535 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 535 of 2010 (O&M) Date of Decision:16.08.2010 Municipal Corporation Faridabad and another .....Appellants Versus Ram Kumar ...Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr. Sanjeev Kaushik, Advocate, for the appellants. **** M EHINDER S INGH S ULLAR , J.(oral) This regular second civil appeal is directed by Municipal Corporation, Faridabad and its Joint Commissioner appellants-defendants (hereinafter to be referred as “the defendants) against the impugned judgment and decree dated 14.08.2006, by virtue of which the trial Court has decreed the suit for permanent injunction filed by Ram Kumar son of Balbir respondent-plaintiff (hereinafter to be referred as “the plaintiff) and the judgment and decree dated 14.02.2007, vide which the first Appellate Court has dismissed their appeal as well. 2. The matrix of the facts relevant for disposal of present appeal and emanating from the record is that the plaintiff filed the suit for decree of permanent injunction restraining the defendants from forcibly dispossessing him in any manner and from demolishing any part of the suit property, inter alia, pleading that he is absolute owner and in possession of the land in dispute since the time of his ancestors. He has raised old construction over it and is paying the house tax to the defendants regularly. RSA No. 535 of 2010 2 3 Concisely, the plaintiff claimed that he is owner and in possession of the disputed property but the defendants are bent upon to interfere in his peaceful possession and demolish the constructions on the disputed property without any legal right. On the basis of the aforesaid allegations, the plaintiff filed the suit for permanent injunction against the defendant, in the manner depicted here-in-above. 4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit and locus standi of the plaintiff. The ownership and possession of the plaintiff over the suit land was also denied. According to the defendants as a matter of fact the plaintiff started illegal and unauthorized construction on it on 01.04.2002, for which legal notice dated 04.04.2002 under Section 261 of the Haryana Municipal Corporation Act was issued to him. The plaintiff did not comply with the notice and the defendants have no alternative but to issue order of demolition. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 6. The parties to the lis brought on record the oral as well as documentary evidence in order to substantiate their pleaded stands. 7. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiff and restrained the defendants from interfering in his peaceful possession and from demolishing any part of the suit property, except in due course of law. Further the liberty was granted to the defendants to issue fresh notice to the plaintiff with details of unauthorized construction, if any, by virtue of impugned judgment and decree dated 14.08.2006. RSA No. 535 of 2010 3 8. Aggrieved by the judgment and decree of the trial Court, the appellants-defendants filed the appeal, which was dismissed as well, by the first Appellate Court, vide impugned judgment and decree dated 14.02.2007. 9. The appellants-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how this appeal was placed before me. 10. After hearing the learned counsel for the appellants-defendants, after going through the record with his valuable help and considering the matter deeply, to my mind, there is no merit in the appeal as well. 11. Ex facie, the main argument of learned counsel for the appellants- defendants that since the plaintiff has raised an unauthorized construction over the property in dispute, so the Committee was well within its jurisdiction to issue, the notice of demolition, outrightly deserves to be rejected. 12. As is evident from the record that the plaintiff is proved to be owner and in possession of the dispute portion, which was even so admitted by DW- Umar Farooq. The house tax record Ex.PW3/A of the Committee would reveal that the plaintiff has raised the construction over the suit land in the year 1997 and was paying the house tax regularly. Once it is proved on record that construction of the plaintiff is old and he has been paying the house tax to the Committee, then it cannot possibly be saith that the plaintiff has raised the construction illegally. 13. No cogent evidence is forthcoming on record to prove that how, when on which portion and in what manner, the plaintiff has raised the unauthorized construction on his own plot. Thus the notice of demolition is as vague as anything. In this respect the first Appellate Court has observed as under: - “Admittedly, the plaintiff is the owner in possession over the suit land as is clear from a perusal of the copy of jamabandi Ex.P1 for the year 1998-99 and copy of Khasra girdwari Ex.P2 for the year 2001 and 2002. Admittedly, the plaintiff has been paying the house RSA No. 535 of 2010 4 tax to the defendants regarding the construction raised by him over the suit land since the year 1997 as is clear from a perusal of the house tax receipts Ex.PA to Ex.PC duly proved by Chiranji Lal, Clerk, M.C.F. PW-3 who has also produced the relevant extract of the assessment record Ex.PW3/A in which the plaintiff has been recorded as owner in possession of the suit land. Even DW-1 Umar Farooq in his cross-examination has admitted that the plaintiff is the owner in possession over the suit land. It is very much clear from the house tax record Ex.PW3/A that the construction over the suit land is since the year 1997 and, therefore, it will be reasonable to infer that the construction is quite old and, therefore, it does not lie in the mouth of the defendants to say that the plaintiff has raised the construction over the suit land illegally. In fact, the plaintiff has carried out the repairs in the roof which fact has been mentioned in the notice under Section 261 dated 10.4.2002 Ex.D1 served upon the plaintiff. It may be pointed out here that the defendants have not given the detailed particulars regarding the unauthorized construction in the notice which was allegedly raised by the plaintiff in violation of the rules and regulations. It has simply been mentioned in the notice Ex.D1 that only roof was repaired by the plaintiff and, therefore, the defendants have no right to demolish the construction raised by the plaintiff over the suit land on the basis of the notice dated 10.4.2002 and the order of demolition dated 10.4.2002 which are illegal, null and void and the same are not binding upon the rights of the plaintiff who is the owner in possession of the suit land who was within his right to repair the roof as the same was about to fall. There is nothing on record to suggest that the plaintiff was required to seek permission from the RSA No. 535 of 2010 5 respondents to carry out the said repairs on the roof of the binding which was already constructed by him.” 14. In this manner, the Courts below have rightly accepted the claim of the plaintiff and negatived the stand of the defendants in this relevant connection. 15. Moreover, the trial Court has granted the liberty to the defendants to issue a fresh notice to the plaintiff with details of the unauthorized construction, if any, and to take action in accordance with law. In that eventuality the appellants- defendants cannot possibly be termed to be aggrieved by the impugned judgments in any manner. 16. No other meaningful arguments have been raised by the learned counsel for the appellants-defendants to assail the findings of the Courts below. All other submissions, relatable to the appreciation of evidence, now sought to be urged on their behalf, in this relevant connection, have already been duly considered and dealt with by the Courts below. 17. Above all, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the above indicated finding of facts. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under Section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out in the impugned orders by the learned counsel for the appellants-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 18. Meaning thereby, the entire matter revolves around the reappreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, RSA No. 535 of 2010 6 muchless substantial, is involved in the second appeal, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants-defendants. 20. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed August 16, 2010 (MEHINDER SINGH SULLAR) naresh.k JUDGE