RSA No. 2102 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2102 of 2007(O&M) Decided on : 20-05-2009 Municipal Committee, Sanaur through its President/Executive Officer and another ....Appellants VERSUS Subash Chand Joshi ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Kumar Vishav Aggarwal, Advocate for the appellants MAHESH GROVER, J C.M. No. 5888-C of 2009 After hearing the learned counsel for the applicants and for the reason that his absence has been explained and regrets have been expressed, the order dated 3.3.2009 is re-called and the appeal is restored to its original number. C.M allowed. RSA No. 2102 of 2007 This appeal has been preferred by the defendant against the judgment of the learned First Appellate Court dated 12.1.2006. The plaintiff-respondent filed a suit for permanent injunction seeking to restrain the appellants from interfering or causing to demolish his property which is in his peaceful possession situated in Arya Samaj Mohalla, Sanaur marked as ABCD in the site plan which was accompanying RSA No. 2102 of 2007(O&M) 2 the plaint. A prayer for mandatory injunction was also made asking the appellants to restore the suit property to its original condition. It was pleaded by him that the suit property was owned and possessed by Smt. Jahswani Devi, mother of the plaintiff-respondent who intended to erect/open windows and doors towards the western side of the house which is a street and for that purpose she had submitted a building plan to the appellants on 13.4.1967 and had also complied with the other requirements. This plan was sanctioned after due inquiry by the appellants and thereafter the mother of the plaintiff-respondent raised construction in the year 1967 after obtaining the necessary sanction. It was pleaded that the portion which has been reflected in the red colour in the site plan is in existence for the last 42 years and due to excessive rains in the year 1992-93 the outer wall of the property at points AB was severely damaged and the debris of the said wall is still lying at the spot. There was a chabutra existing which was in occupation of the mother of the plaintiff. It is pleaded that his mother died on 23.6.1992 and after her death the plaintiff-respondent succeeded to her estate and is in possession thereof. A school was set up by the wife of the plaintiff in the suit property and the portion shown in red colour was used as cycle stand by the students. He further pleaded that he had enmity with one Mohinder Pal s/o Ishri Prasad with whom he had a dispute and the said Mohinder Pal was booked for causing injuries to him and was tried and convicted by the Judicial Magistrate First Class, Patiala. It is the case of the plaintiff-respondent that it is at the behest of Mohinder Pal that the Municipal Committee-the appellants issued a notice under Section 172 of the Punjab Municipal Act to him on 28.8.2001 requiring him to demolish the red portion of the property. Reply to the said notice was submitted RSA No. 2102 of 2007(O&M) 3 which was received on 30.8.2001 and without deciding the same, the staff of the appellants alongwith said Mohinder Pal came to the spot and demolished the pucca floor which has been used as cycle stand. He pleaded that the appellants are bent upon demolishing the property and after filing of the suit they have demolished the brick floor of the chabutra and utilized the debris. They have also encroached upon the area measuring 4' – 10” beyond the chabutra in front of the room of the school building and started digging foundations and brick flooring on 19.11.2001. A report was lodged to the police post, Sanaur vide DDR No.17 dated 19.11.2001. An application was also moved before the Deputy Director Local Government, Patiala on 23.11.2001. It was pleaded that the appellants had constructed concrete flooring with a drain adjoining to all the rooms and passed the same through the street on the southern side of the house and all this was done during the pendency of the suit. They are bound to restore the chabutra 6' wide and vacant space 4'-6” upto the door of the room of the school building and also remove the drain constructed by them. The suit was contested by the appellants who denied that the suit property was owned and possessed by mother of the plaintiff and that he was in possession thereof. The averments regarding construction of windows towards side of the street were also denied as also were the averments regarding sanction of the site plan and the consequent construction by seeking approval of the appellants. The brick flooring and the portion of the chabutra in occupation of the plaintiff-respondent were also denied. In fact the ownership of plaintiff and his mother were also denied. It was pleaded by them that the suit property is a Chowk square which is being used for last more than 50 years and suit property marked as RSA No. 2102 of 2007(O&M) 4 ABCD never remained in possession of the plaintiff as alleged. The issuance of notice under Section 172 of the Punjab Municipal Act was admitted and it was admitted that one Mohinder Pal filed a complaint before the Deputy Director Local Bodies and also before Deputy Commissioner, Patiala and the plaintiff was required to produce any ownership record within three days from the receipt of the notice dated 28.8.2001 but he failed to produce the same and consequently it was pleaded that the plaintiff-respondent had no right, title or interest in the property which is being used by the general public. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Relief. Learned Trial Court partly decreed the suit of the plaintiff- respondent and granted decree of permanent injunction while refusing a decree of mandatory injunction. The prayer of the plaintiff-respondent was answered in the following terms:- “As a sequel of my findings, particularly on issue no.1, suit of the plaint partly succeeds and a decree for permanent injunction restraining the defendants from interfering or causing to interfere or demolishing or causing to demolish the house property shown in green colour in the site RSA No. 2102 of 2007(O&M) 5 plan attached to the plaint situated at Arya Smaj Mohalla, Sanaur forcibly except in due course of law, is ordered to be granted in favour of the plaintiff and against the defendants. However, suit for permanent injunction and mandatory injunction qua portion shown in red colour fails and is ordered to be dismissed. In the peculiar circumstances of the case, the parties are left to bear their own costs. Decree sheet be drawn.” In appeal, before the learned First Appellate Court, findings of the learned Trial Court were upset and the suit of the plaintiff was decreed in the following terms:- “As a result of the above discussion, the present appeal is allowed and the amended suit of the plaintiff is decreed in toto. In addition to the permanent injunction already allowed by the trial Court, the mandatory injunction is also granted to the plaintiff directing the defendants to restore the suit property to its original condition as it was on the date of filing of the suit, ie to restore the chabutra 6 feet wide and the other space of 4' 10” upto the door of the room of the school building and to remove the drain constructed by them during the pendency of the suit. The costs of the suit as well as appeal are also allowed. Decree sheet be prepared. Trial Court records be returned. Appeal file be consigned to record room.” Learned counsel for the appellants has contended that the findings recorded by both the Court below are perverse and erroneous and have been arrived at by mis-reading of the evidence and are therefore, liable to be set aside. However, no question of law was framed by the learned RSA No. 2102 of 2007(O&M) 6 counsel for the appellants in the grounds of appeal furnished by him. I have heard learned counsel for the appellants and have perused the impugned judgment. It is to be noticed that the prayer for permanent injunction was granted by the learned Trial Court in favour of the plaintiff-respondent which is not assailed by the present appellants by filing any appeal, consequently, the said prayer was granted on the basis of the findings which were returned by the learned Trial Court on issue no.1 wherein it had held that there was no dispute between the parties regarding the house property which was reflected in green colour in the site plan but in so far as area shown in red colour was concerned neither the ownership of the plaintiff- respondent was established nor was the possession. The appellants did not prefer any appeal against the same and consequently the findings of the learned Trial Court holding that the appellants were injuncted from interfering in possession of the property shown in green colour which is a house have become final inter se between the parties. The plaintiff- respondent initially filed a suit for permanent injunction only and it is only after the filing of the suit that the plaint was amended and prayer for mandatory injunction was also incorporated so as to direct the appellants to restore the property shown in red colour in chabutra to its original status as it was the case of the plaintiff-respondent that this area had been demolished by the appellants. Learned First Appellate Court while determining this aspect of the matter had referred to the evidence of the plaintiff-respondent. Site plan Ex.P-1 reflected that 4'10” of space existed in front of the house of the plaintiff-respondent and a space measuring 6 feet x 28 feet also existed as depicted in the red colour. The respondent also successfully proved that RSA No. 2102 of 2007(O&M) 7 his mother had got sanctioned the site plan in the year 1967 from the appellants themselves. Ex.P-6 is the receipt for the amount deposited for getting the plan sanctioned which is corroborated by Ex.P-5 which is the record showing that site plan was submitted for sanction and Ex.P-7 is the site plan sanctioned on 5.7.1967 according to which a 4' x 10” space in front of the house of the plaintiff-respondent existed and also 6 feet wide chabutra and beyond that is the public street reflected. Ex.P-8 was the letter issued by the President of the Municipal Committee granting permissin for the construction which permission was granted pursuant to a general meeting. In this view of the matter, a pure question of fact has been determined that a house was constructed after obtaining necessary sanction and there existed space 4' x 6'' in front of the house of the plaintiff and a 6 feet wide chabutra. In order to show that this area had been demolished by the appellants, plaintiff examined Draftsman Inderesh Khanna as a witness and photographer Gurbinder Singh who proved that on 23.10.2001 before the demolition he took photographs showing the existence of the chabutra and the debris lying on one side of the vacant space and therefore chabutra had been demolished. The appellants in turn did not produce any record to counter the evidence of the plaintiff-respondent. Even though their own witnesses admitted that they were having the entire record pertaining to sanction of site plan till date. In this view of the matter, when there was no contrary evidence and the plaintiff-respondent successfully proved his case and the learned First Appellate Court merely determined a question of fact regarding the existence of 4' x 6” space in front of the house of the plaintiff and a 6 feet RSA No. 2102 of 2007(O&M) 8 wide chabutra which was shown in the site plan as red colour, I am of the considered opinion that it cannot be said that the learned First Appellate Court has mis-read the evidence, so as to invite any interference by this Court in the present appeal. Learned counsel for the appellants has miserably failed to show any material on record from where it could be inferred that the findings recorded by the learned First Appellate are erroneous and liable to be set aside. As observed earlier, no question of law has been framed and consequently since merely questions of fact have been determined by the learned First Appellate Court, I am of the considered opinion that the appeal is totally devoid of any merit and warrants dismissal. Ordered accordingly. May 20 , 2009 (Mahesh Grover) rekha Judge