IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3365 of 2009 Date of Decision : September 17, 2009 Amar Nath ....Appellant Versus Municipal Corporation, Bathinda .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Amit Goyal, Advocate T.P.S. MANN, J. Suit for declaration and for permanent injunction filed by the plaintiff-appellant was dismissed by the learned Civil Judge (Junior Division), Bathinda on 22.10.2008. Even the first appeal filed by the plaintiff was dismissed by the learned Additional District Judge (Fast Track Court), Bathinda on 25.8.2009. He is now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff, he was owner in possession of one shop measuring 9'3” x 11' bearing municipal No.2711/A/2 as having inherited the same from his forefathers. He was in possession of the same since 1945. Pucca construction on the same was made in the year 1960. Previously, the plaintiff used to utilise the land measuring 25' x R.S.A. No. 3365 of 2009 -2- 9'3” belonging to the defendant and situated in front of his shop for which he was regularly paying Teh Bazari to the defendant. He used to place the articles in front of his shop, i.e. on the land belonging to the defendant. Teh Bazari portion in the possession of the plaintiff was got vacated by the defendant to the extent of 20' x 9'3” and, thereafter, footpath in front of the shop of the plaintiff was constructed in the year 1981. The defendant had also issued notice regarding cancellation of the Teh Bazari for construction of the footpath. On account of the construction of the footpath, about 2' 3” of the front portion of the shop of the plaintiff was acquired by the defendant. The plaintiff, thus, ceased to possess any land belonging to the defendant, rather it was the defendant, who was in illegal possession of the aforementioned 2' 3” front portion of the shop. In the eviction proceedings filed before the Collector by the defendant, the latter had claimed ownership over the shop and further claimed rent till delivery of possession. The defendant failed to prove its possession over the shop in dispute. Despite the same, the Collector ordered the plaintiff to pay rent for the last three years. Said order was not binding upon the plaintiff as the portion, which was on Teh Bazari had already been got vacated by the defendant. Accordingly, he sought relief of declaration. In the alternative, he claimed that he was in adverse possession of the suit property. As the defendant was threatening to dispossess him under the garb of the order passed by the Collector and despite the plaintiff R.S.A. No. 3365 of 2009 -3- requesting the defendant many times not to do so but it was of no use, he was constrained to file the suit and seek a decree so as to restrain the defendant. The suit was resisted by the defendant by taking legal objection regarding non-service of any notice as required under Section 49 of the Punjab Municipal Act. On merits, it was alleged that the defendant was owner of the disputed property. Admittedly, the shop in question was on Teh Bazari with the plaintiff earlier and the said Teh Bazari was cancelled in the year 1991. The payment of the house tax by the plaintiff did not make him owner of the site in question. In fact, the number of the site in question was 2714 and not 2711/1/2. The footpath was constructed by the defendant on its own land and no land of the plaintiff was acquired. The Collector had rightly ordered the plaintiff to pay the rent and the said order was legal in all respects. Denying other material averments made by the plaintiff, the defendant prayed for dismissal of the suit with costs. Admittedly, the plaintiff-appellant did not produce any document regarding ownership of the property in dispute in the name of his father or grand-father. Even he failed to recollect as to whether mutation was effected in his name after the death of his father. He also admitted that he never moved any application before the defendant for making entry of the ownership in his favour regarding the shop in dispute. R.S.A. No. 3365 of 2009 -4- Though the plaintiff-appellant relied upon house tax receipts Exs. P16 to P19 in respect of the suit property but he had not denied that a criminal case was got registered against him and some officials of the defendant-Corporation under Sections 218/467/471/474 IPC regarding tampering with the house tax record and, that too, with regard to the property in dispute. The plaintiff also placed reliance on documents Exs. PW3/A and PW3/B to show that the property bearing No. 2711/A-2 was in his name but those documents were in a torn condition and did not bear the signatures or initials of any competent authority. This fact was also admitted by him that the respondent- Corporation had got vacated the said property from G.G. Motors. On 26.3.2002, Sub Divisional Magistrate, Bathinda asked the plaintiff to deposit rent for a period of three years but the same was not paid. The said order could have been challenged by the plaintiff by filing an appeal before the Commissioner but he did not do so. Instead, he chose to file the present suit. It is another fact that after the dismissal of the suit by the learned trial Court and during the pendency of the first appeal, the plaintiff challenged the order dated 26.3.2002 by filing an appeal before the competent authority but the said appeal has also been dismissed. Though learned trial Court had decided issue No.5 regarding the suit being bad for non-filing of the notice under Section 49 of Punjab Municipal Act, in favour of the plaintiff but the said R.S.A. No. 3365 of 2009 -5- finding was reversed by the learned lower appellate Court in view of the fact that, admittedly, no such notice had been served by the plaintiff before filing the suit. The concurrent findings of facts arrived at by the learned Courts below on issues No.1 to 3 are based on proper appreciation of the material evidence brought on the record. These findings cannot be reversed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as framed by learned counsel for the appellant, do not arise for determination. In view of the above, there is no merit in the appeal and the same is, resultantly, dismissed in limine. ( T.P.S.MANN ) September 17, 2009 JUDGE satish