RSA No.2134 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2134 of 2006 (O&M) Date of decision: 5.5.2010 The Sangrur Central Cooperative Bank Ltd. ......Appellant(s) and another Versus Om Parkash @ Kapil Dev s/o Jeewan Dass ......Respondent(s) and others CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.S. Salar, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.5154-C of 2010 Application is allowed subject to all just exceptions. RSA No.2134 of 2006 This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for permanent injunction was decreed with costs and the appellants were restrained from encroaching upon the site in dispute except in due course of law. As per the averments made in the civil suit, the plaintiff- respondents claimed that they are using the street in dispute shown in blue colour in the site plan marked as ABCD for approaching their houses. The appellants are the owners of a plot lying on the Northern side of the street in dispute and has threatened to merge the street with their own plot. The appellants have got no connection with the street which is maintained by the Municipal Council, Sangrur and the plaintiff-respondents have got RSA No.2134 of 2006 (O&M) 2 easementary right to use the same. Hence, the suit. The suit was contested by the appellants stating that they had purchased 1 kanal 13 marlas area from the Cooperative Consumer Store and no such street was shown in the sale deed and they were in possession of the plot comprised in Khasra No.2017 and have got every right to use their own land in any manner. Replication to the written statement of the appellants was also filed by the plaintiff-respondents in which the averments made in the written statement were denied and those made in the plaint were reiterated. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the street mark ABCD, as shown in the site plan is in existence at the spot? OPP 2. Whether the suit is bad due to non-serving of notice u/s 80 CPC? OPD 3. Whether the suit is bad due to non-mentioning of khasra no. of property in question? OPD 4. Whether plaintiffs are entitled to relief of injunction as prayed for? OPP 5. Relief.” After appreciating the evidence led by the parties and hearing the respective counsel, the Additional Civil Judge, (Sr. Division), Sangrur decreed the suit. It may be pointed out that while decreeing the suit, the trial Court found that there was a street which was brickpaved by the Municipal Council without any objection from the previous owner and therefore, there was implied consent and there also existed a sewerage line in the street in dispute and thus, the aforesaid street assumed the character of a public street and in view of the aforesaid findings, it was RSA No.2134 of 2006 (O&M) 3 held that the site in dispute was a public street and the plaintiffs were using the same for approaching their houses and thus, the defendant-appellants were restrained from encroaching upon the suit property except in due course of law. Aggrieved by the impugned judgment and decree of the trial Court, the appellants filed an appeal before the Lower Appellate Court. Before the Lower Appellate Court, it was argued on behalf of the appellants that the alleged street was not a street and the same belonged to the appellants and since the appellants were the true owners of the property which includes the street in question therefore, no injunction could be issued against the true owner or in favour of a person who had gained unlawful possession. On the basis of the aforesaid argument, the judgment and decree of the trial Court was sought to be set aside. After hearing learned counsel for the parties, the Lower Appellate Court vide impugned judgment and decree dated 10.12.2005 dismissed the appeal. Still not satisfied, the appellants have approached this Court by way of present appeal and have submitted that the following substantial questions of law arise in this appeal: “(i) Whether a private plot can be declared a street if some person starts using it and the Municipal Committee forcibly brick paves it and lays down sewerage? (ii) Whether injunction can be granted against true owner? (iii) Whether a purchaser if purchases the property on the basis of “as is where is” is he precluded from retrieving the property from any 3rd person also? RSA No.2134 of 2006 (O&M) 4 (iv) Whether the Courts bellow have wrongly relied upon the case law and the statute law in holding the land of the plaintiffs as public street when no reveue record has been produced to show that in fact the land under a alleged street was in fact a street. In support of the appeal, learned counsel for the appellants has vehemently argued that the Courts below have wrongly interpreted the provisions of Punjab Municipal Act, 1911 to hold the street in question as a public street. Elaborating further his argument, learned counsel for the appellants has vehemently argued that as per the provisions of Section 3 (13) of the Punjab Municipal Act, 1911, a private property of a person cannot be treated as a public street unless it is shown that there was an agreement between the owner of the land and the occupier, to use the same as a street or there was any implied or express consent of the owner. Since there is no evidence on record in this regard, therefore, the findings of the Courts below are liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decrees. The argument raised by the learned counsel for the appellants is without any merit. It is relevant to refer to judgment dated 22.4.2003 passed by the Additional District Judge, Fast Track Court, Sangrur in earlier litigation in a Civil Appeal No.480 of 1999 titled as Municipal Committee, Sangrur v. Sangrur Central Cooperative Bank Limited (Ex.P- 12) wherein it was held that the street and the drain existed at the plot in dispute and the same was bricklined and the sewerage pipes and water pipes etc. were also laid down in the street and therefore, it was established that a drain already exists in the street at the spot and some portion of the plot of the appellants was encroached by Shiva Timber RSA No.2134 of 2006 (O&M) 5 Traders and remedy of the appellants was therefore, to seek possession from the trespassers. Admittedly, in the aforesaid judgment dated 22.4.2003 (Ex.P- 12), a finding has been recorded that there exists a street in the plot in question which is being used by the people of the area and the aforesaid street has been bricklined by the Municipal Council, Sangrur. The sewerage pipes, water pipes and telephone cables have also been laid in the aforesaid street at the expenses of public fund. Thus, from the aforesaid evidence on record, it is clearly established that the street in question which exists at the spot had assumed the character of a public street as per the provisions of Punjab Municipal Act. The argument of the learned counsel for the appellants that there is no evidence to prove the necessary ingredients of the definition of “public street” as defined under Section 3(13) of the Punjab Municipal Act, 1911, is erroneous as admittedly the previous owner had not objected to the laying of bricklining of the street and other facilities. Neither the appellants after the purchase of the property, had at any stage stopped the Municipal Council from extending other facilities in the street in question. Thus, there was implied consent of the owner of the property to use the same as pubic street. Moreover, admittedly, the money has been spent from the public funds to provide civic amenities in the street and thus, it cannot be held that the aforesaid street is not a public street. The Courts below have decreed the suit of the plaintiff- respondents and have restrained the defendant-appellants from interfering in the peaceful possession except in due course of law meaning thereby the appellants can seek the possession/declaration of their rights in accordance with law. Thus, I find no merit in this appeal. RSA No.2134 of 2006 (O&M) 6 No substantial question of law arises in this appeal. No other point was urged. Dismissed. May 5, 2010 (RAKESH KUMAR GARG) ps JUDGE