RSA No. 234 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 234 of 2004 Date of Decision: 12.08.2009 Municipal Council, Karnal through its Executive Officer, Karnal. ... Appellant Versus 1. Kanshi Ram; 2. Mukand Lal; both sons of Sh. Moti Ram r/o P-323, Opposite Cold Storage Mere Ghatti outside Gattoin Gate, Karnal. 3. Surinder Kumar son of Sukantala wife of Sh. Shander Bhan d/o Moti Ram r/o Old Housing Board, Karnal, legal heir of Smt. Shukantala wife of Sh. Shander Bhan. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jagdish Manchanda, Advocate, for the appellant. Mr. Pritam Saini, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 17.05.02, rendered by the Court of Additional Civil Judge (Senior Division), Karnal, vide which, it decreed the suit of the RSA No. 234 of 2004 2 plaintiff, and the judgement and decree dated 26.07.03, rendered by the Court of Additional District Judge, Karnal, vide which, it dismissed the appeal. 2. The plaintiffs/respondents, claimed that they were allotted the suit property by the custodian department, on 01.10.55. The price was adjusted from the claim amount of the father of the plaintiffs. An affidavit dated 02.03.85, was submitted by the father of the plaintiffs, before the Municipal Committee, Karnal, that the property, be transferred, in the name of his two sons namely Kanshi Ram and Mukand Lal, in equal shares. At the time of allotment of the property, site plan, was prepared. It was stated that the plaintiffs, being the owners of the residential house, in dispute, the defendant, had no right, to interfere into their possession. The defendant, however, threatened to demolish the construction, raised by the plaintiffs, without any right. It was further stated that the house, in question, was constructed, in the year 1971. A Pilkhan tree, was standing near the residential house of the plaintiffs, which fell down, on the roof of the said house, on 20.12.87. The roof of the house got demolished and the plaintiffs carried out the repairs to maintain the suit property by replacing the roof. One half portion of the roof of the house, in question, was plastered with cement. The defendant, was many a time asked, not to interfere into the peaceful possession of the plaintiffs, and refrain from demolishing any construction of the residential house, but to no avail. On the final refusal of the defendant, left with no other alternative, a suit for permanent injunction, was filed. RSA No. 234 of 2004 3 3. The defendant, put in appearance, and filed written statement, wherein it took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was further pleaded that the plaintiffs, had not come to the Court with clean hands. It was further pleaded that the plaintiffs, were estopped, from filing the suit, by their own act and conduct. It was stated that the property, in dispute, was never transferred, in the names of the plaintiffs. It was further stated that Moti Ram father of the plaintiffs, had raised unauthorized construction, and in that process, he encroached upon the Municipal Committee land, to the extent of 18.9” x 7” + 10” x 6”, in the Month of December, 1987. Notices under Sections 208, 209 and 181 dated 24.12.87, under Haryana Municipal Committee Act, were duly served upon the plaintiffs. It was further stated that the Municipal Committee was well within its rights to demolish the construction. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is owner in possession of the disputed property as alleged? OPP (ii) Whether the plaintiff has no locus- standi to file the present suit? OPD (iii) Whether suit is not maintainable in the present form? OPD (iv) Whether suit is bad for non-joinder of RSA No. 234 of 2004 4 necessary parties? OPD (v) Whether plaintiffs are estopped by their own act and conduct from filing the present suit? OPD (vi) Whether the report of the Local Commissioner is liable to be set aside on the grounds mentioned in the objection petition? OPA (vii) Relief. 5. After hearing the Counsel for the parties, and on going through the evidence, on record, the trial Court, decreed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal, was preferred by the defendant/appellant, which was dismissed, by the Court of Additional District Judge, Karnal, vide judgement and decree dated 26.07.03. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the defendant/appellant, submitted that the site was visited by Junior Engineer of the Municipal Committee, who found, that the property of the Municipal Committee, had been encroached upon, by the plaintiffs/respondents, by raising construction. He further submitted that from D2, the report, submitted by the Junior Engineer, this fact, was proved, beyond doubt. He further submitted that due notices, were given, to the plaintiffs/respondents, as per the provisions of law, and, as such, the Municipal Committee, was RSA No. 234 of 2004 5 competent, to demolish the unauthorized construction, having been raised, by the plaintiffs/respondents, by encroaching upon the Municipal Committee land. He further submitted that the Courts below, illegally ignored D2. He further submitted that the findings of the Courts below, being perverse, were liable to be set aside. 10. On the other hand, the Counsel for the plaintiffs/respondents, submitted that report D2, was not proved, in accordance with the provisions of law, as the author thereof, i.e. Junior Engineer, was not produced. He further submitted that, as such, the Courts below, were right, in coming to the conclusion, that no encroachment, had been made by the plaintiffs/respondents, over the Municipal Committee land. He further submitted that the Courts below, were right, in decreeing the suit. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that in Regular Second Appeal, this Court, cannot interfere into the concurrent findings of fact, recorded by the Courts below. This Court, in the Regular Second Appeal, can only decide the substantial questions of law, if any arise, for determination. Similar principle of law, was laid down, in Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72,. PW4/1 is the conveyance deed. From the RSA No. 234 of 2004 6 schedule, appended to the conveyance deed, it was proved, that the father of the plaintiffs/respondents, was allotted the suit property, by the custodian. The plaintiffs/respondents, were undisputedly, in possession of the property, in dispute, being the sons of the allottee. According to the defendant/appellant, the plaintiffs/respondents, encroached upon the Municipal Committee land, in September, 1987, and then the notices, were issued. D2, is the report, which was prepared by Mukesh Kumar, Junior Engineer of the Municipal Committee, Karnal, on 24.12.87, with regard to the encroachment made by the plaintiffs/respondents, on the Municipal Committee land. However, from Para No. 15 of the judgement of the first Appellate Court, it is clear that Mukesh Kumar, Junior Engineer, was not examined, as a witness. He could be said to be the material witness, to prove the report, as to how much area of the Municipal Committee, had been allegedly encroached upon, by the plaintiffs/respondents. Identification of signatures, on the report, by Ram Kumar, DW1, Building Clerk of the Municipal Committee, did not prove the contents of the report. After all, on the basis of the report D2, relating to the alleged encroachment, the property of the plaintiffs/respondents, was going to be demolished. The sanctity was, therefore, attached to D2. In the absence of proof of the contents thereof, by the author of the same, the Courts below, were right, in discarding the same, as a document, being not proved. The statement of Darshan Kumar Gulati, Clerk, Municipal Committee, DW2, was also rightly ignored, by the Courts below, on the ground, that he had only seen the property casually, and could not RSA No. 234 of 2004 7 say, with regard to any encroachment, as he was not charged with the duty of finding out the same. A Local Commissioner, in the shape of an Advocate, was appointed. He gave the report that the plaster on the wall seemed to be fresh. From the report of the Local Commissioner, it was also not proved, that any encroachment, had been made, by the plaintiffs/respondents, over the land of the Municipal Committee. It was, on the other hand, the case of the plaintiffs/respondents, that on 20.12.87, a Pilkhan tree, had fallen, on their roof, as a result whereof, it got demolished, and in order to maintain the same, they had to replace it and plaster 1/ 2 portion, shown as mark B, in red, in the site plan. This fact, was proved, from the statement of Mukand Lal, one of the plaintiffs/respondents, who appeared as PW1. The Courts below, were right, in coming to the conclusion that, in the absence of proof of D2, the report, with regard to the alleged encroachment, made by the plaintiffs/respondents, the notices, issued for demolition, were illegal. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the defendant/appellant, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second RSA No. 234 of 2004 8 Appeal, being devoid of merit, must fail, and the same is dismissed. 12.08.2009 (SHAM SUNDER) Amodh/vj JUDGE