Regular Second Appeal No. 2339 of 2010 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2339 of 2010 (O&M) Date of Decision: 19.8.2011 Mahabir Parsad …Appellant Versus Municipal Council, Rewari …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kul Bhushan Sharma, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 9330-C of 2011 Civil Misc. Application is allowed. Copies of judgment/order dated 15.2.2010, passed by this Court in Regular Second Appeal Nos. 2845 of 2007 and 2405 of 2007 titled as “Tripati Khandelwal v. Mahabir Parshad” are taken on record. Civil Misc. No. 7008-C of 2010 For the reasons stated in the application, the same is allowed. Delay of 27 days in refiling the appeal is condoned. Regular Second Appeal No. 2339 of 2010 The plaintiff, having failed in two rounds of litigation, has approached this Court to assail the concurrent findings of fact returned by both the Courts below. The appellant/plaintiff had instituted a suit for Regular Second Appeal No. 2339 of 2010 (O&M) 2 permanent injunction claiming that he is owner in possession of the property denoted by letters ABCDEFG shown in blue colour in the site plan attached with the plaint, details and description whereof has been given in paragraph No.4 of the plaint. Along with the portion, which was shown in blue colour, another portion depicted in the site plan Ex.P2 was A, A1, A2 and A3. This portion seems as an annexe to the main house and is stated to be a kothri, which according to the plaintiff was constructed in the year 1961. It is averred that there was acquiescence on the part of the Municipal Council as it had not raised any objection regarding this construction. Furthermore in the site plan, sanctioned by the Municipal Council, Rewari, the disputed premises A, A1, A2 and A3 has been depicted. It was further pleaded that his neighbour Dalip Khandelwal husband of Tripati, being a businessman, is an influential person of the locality. Furthermore, Dalip Khandelwal had been elected as a Councillor, therefore, he intended to make encroachment over the property of the plaintiff and at his instance, the Municipal Council had issued notice No. 373 dated 13.3.1992 under Section 181 of the Municipal Council Act, to the plaintiff for removal of the permanent construction standing upon the red portion denoted as A, A1, A2 and A3. It was further stated that the plaintiff had taken 8 feet area by installing a wooden takht/cot on tehbazari of Municipal Council. Therefore, he used to instal wooden takht/cot on the southern side of the disputed structure marked as A, A1, A2 and A3. It was further stated that there was a water channel on the southern side of the property which had been blocked by the defendant illegally. It was further pleaded that from the demised premises, the plaintiff has been running Regular Second Appeal No. 2339 of 2010 (O&M) 3 a shop of general store. The plaintiff had earlier filed two other civil suits which were pending in the Civil Courts. Thus, it was claimed that the Municipal Council has no right, title or interest as the demised premises denoted as A, A1, A2 and A3 is under exclusive ownership of the plaintiff. It was further stated that cause of action has arisen to the plaintiff on 4.11.1997 when the defendant made an attempt to demolish the demised premises. Upon notice, Municipal Council, Rewari, defendant, had caused appearance and filed a written statement. It had taken many preliminary objections including maintainability of the suit, locus standi of the plaintiff. On merits, the ownership and possession of the plaintiff over the suit property was denied. It was stated that the area shown in red colour as A, A1, A2 and A3 is part and parcel of rasta shar-e-aam (public passage) which vest in the Municipal Council with which the plaintiff has no concern. The ownership of plaintiff with regard to the property, shown in blue colour, has also been denied. It was denied that the plaintiff had raised construction over the portion, shown in blue colour, in the year 1961. It was averred that right from the commencement of the construction, the disputed portion has been denoted as a public passage (rasta shar-e-aam). It was stated that on 13.3.1992 a notice was issued under Section 181 of the Municipal Act regarding the encroachment and consequently in compliance with that notice, the plaintiff himself had removed the encroachment but lateron he had again encroached upon the public place, which is shown in red colour. For removal of this encroachment, on 7.10.1997 a resolution No. 33(v) was passed by the Municipal Council and notice was issued to Regular Second Appeal No. 2339 of 2010 (O&M) 4 the plaintiff which he had refused to receive. Thereafter, on 5.11.1997, the Municipal Council had removed the illegal encroachment. It was denied that the Municipal Council had acted under the influence of Dalip Khandelwal who is a Municipal Councillor. The fact that the demised premises was given tehbazari was also denied. Aggrieved against the same, the plaintiff had filed a replication wherein the contents of plaint were reiterated and that of the written statement were denied. The trial Court, after completion of the pleadings, had formulated the following issues:- “1. Whether the plaintiff is illegally entitled for the relief of injunction? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit of the plaintiff is liable to be stayed under Section 10 CPC? OPD 4. Whether the suit of the plaintiff is barred by Order 2 Rule 2 CPC? OPD 5. Whether the plaintiff is not in possession of the suit property? OPD 6. Whether the suit of the plaintiff is time barred? OPD 7. Relief.” Thereafter, the parties to the suit led their evidence. The trial Court took up issues No.1, 2 and 5 together. The trial Court held that PW.9 Jagdish, neighbour of the plaintiff, was an independent person Regular Second Appeal No. 2339 of 2010 (O&M) 5 and during cross-examination he admitted that the shop constructed over the red portion i.e. demised premises was lying broken. He failed to give date and month when this shop was demolished. The trial Court further held that this lent credence to defendant's version that the area which the plaintiff had illegally and unlawfully encroached upon by raising construction was demolished. The trial Court took into consideration notice Ex.D5 whereby the plaintiff was called upon to remove the encroachment over the rasta shar-e-aam. The trial Court further held that the Municipal Council had ascertained claim of the plaintiff by obtaining reports from the Building Expert. The report Ex.D4 was also taken into consideration. The trial Court further held that notice Ex.D6 was served upon the plaintiff calling upon him to remove the encroachment. Furthermore, this encroachment was removed and for this the Court relied upon the admission made by PW.8 Nand Lal in his cross-examination that he visited the spot, portion whereof is shown in red colour, was lying vacant. The Court further held that if in the year 1992 the disputed property was lying vacant, how and on what basis the shop, as claimed by the plaintiff, came into existence as shown in red colour in the site plan Ex.P2. No basis thereof has been laid in the plaint or proved by way of evidence. The Court further held that in the site plan submitted by the plaintiff on 1.12.1976 Ex.D1, the plaintiff had not claimed the disputed property to be his own. After discussing the entire evidence, the trial Court returned the following finding:- “26. Having into account all the factors discussed in detail above, I am of the considered view that plaintiff is neither owner nor in possession Regular Second Appeal No. 2339 of 2010 (O&M) 6 of the disputed property shown in red colour in the site plan Ex.P2 and denoted by letters A, A1, A2 and A3. As plaintiff is neither owner nor in possession of the disputed property, therefore, he is not entitled for the decree of permanent injunction and his suit for permanent injunction is not maintainable. Consequently, issues No.1, 2 and 5 are answered in favour of defendant and against the plaintiff...” Issues No.3, 4 and 6 were disposed of as not pressed as the same were not pressed upon by the defendants. Consequently, the suit filed by the plaintiff was dismissed. The findings, returned by the trial Court, have been rightly affirmed by the lower Appellate Court. The lower Appellate Court further took into consideration the arguments advanced by the Municipal Council that no person, who has occupied the public place without any authority, can claim ownership by pleading adverse possession and such a person is not entitled to grant of injunction. I have heard Mr. Kul Bhushan Sharma, Advocate, appearing for the appellant/plaintiff. He has harped on the arguments which were raised before both the Court below that because of sanction of the site plan in the year 1976 Ex.PW.5/A by the Municipal Council, this Court should hold that the plaintiff is owner in possession of the disputed site A, A1, A2 and A3. A mere wrong sanction of the site plan is not sufficient to hold that the plaintiff is owner in possession of the disputed property. In the site plan Ex.D1, it has been rightly observed by the trial Regular Second Appeal No. 2339 of 2010 (O&M) 7 Court that it is nowhere evident that the plaintiff is owner in possession of the disputed property. The witnesses of plaintiff themselves have stated that when they visited the spot, the site was lying vacant. Furthermore, it has been admitted by the witnesses of the plaintiff, in their cross-examination, that in pursuance of the notice issued, the building stood demolished, therefore, the relief of permanent injunction cannot and could not be granted to the plaintiff. Hence, no case for interference is made out to disturb the well reasoned concurrent findings returned by both the Courts below. At this stage, Mr. Sharma has submitted that since the plaintiff is in possession of the suit property, therefore, the onus is shifted upon the defendant to prove its title. This argument is liable to be rejected at the outset being fallacious. It has been said by the Courts from time to time that qua the public property the same standards cannot be applied. The Government and the public authorities cannot guard their property. Therefore, the encroacher always remain an encroacher without any right. The encroacher over the public property cannot claim adverse possession. Furthermore, it is the plaintiff's witnesses who have stated that the spot was lying vacant in the year 1992. Therefore, both the Courts below have rightly inferred that it is later an encroachment was made. The public authority i.e. Municipal Council had issued a notice following a due process and had caused demolition. It has been held by the Courts that the encroacher is not entitled to grant of any kind of injunction. Mr. Shama has further placed on record a copy of judgment rendered in Regular Second Appeal No. 2845 of 2007. This judgment is Regular Second Appeal No. 2339 of 2010 (O&M) 8 between Tripati Khandelwal and the present plaintiff. In this, Municipal Council, Rewari, has not been impleaded as a party. Any finding given in the inter-se dispute between the plaintiff and his neighbour will not bind or eclipse the rights of the defendant-Municipal Council. Hence, no question of law, much less a substantial one, has been raised by learned counsel for the appellant/plaintiff during the course of arguments. Thus, the present appeal is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge August 19, 2011 “DK”