Regular Second Appeal No.1367 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-10.8.2010 Savitri Devi wife of Balbir Singh ...Appellant Versus Municipal Council, Bathinda and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Harkesh Manuja, Advocate for the appellant. Mr.G.S.Attariwala, Advocate for respondent No.1. Mr.Ajaib Singh, Addl. AG Punjab for respondent No.2. M ehinder S ingh S ullar , J . (Oral) The conspectus of the facts, culminating in the commencement, relevant for disposal of present appeal and emanating from the record, is that Bishno Devi widow of Rasila Singh (since deceased), being represented by her legal representative Savitri Devi wife of Balbir Singh, appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration to the effect that she is owner and in possession of the plot in dispute and for mandatory injunction directing the Municipal Council and the District Town Planner, Bathinda respondent-defendants (hereinafter to be referred as “the defendants”) to pay a sum of Rs.2 lacs to her as compensation on account of demolition of her house in question. 2. The case set up by the plaintiff, in brief, in so far as relevant, was that the original plaintiff had purchased the disputed plot from one Raghbir Singh, vide registered sale deed bearing No.2706 dated 28.6.1994 and constructed a house over it. The defendants prepared a scheme No.2 Part-I under section 192 of the Punjab Municipal Act, 1911 (for short “the Act”). Although, as per the said Scheme, there was no street passing through the plot of the plaintiff, but still the defendants were stated to have demolished her house without any legal basis, Regular Second Appeal No.1367 of 2007 2 causing her a huge loss. 3. Concisely, the plaintiff claimed that she had purchased the property in dispute, vide indicated sale deed, but the defendants have demolished her house in the garb of existence of street in it. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of declaration and mandatory injunction against the defendants in the manner described here-in-above. 4. The defendants contested the suit and filed their respective written statements, inter-alia, pleading certain preliminary objections of, maintainability of suit, non issuance of notice under section 49 of the Act, locus standi of the plaintiff and the suit being barred by the principles of res-judicata etc. On merits, it was admitted that the Town Planning Department had prepared Scheme No.2 Part-I and according to the said scheme, there is a street on the disputed site. According to the defendants, earlier, the original owner of the plot, Raghbir Singh vendor of the plaintiff, had filed civil suit No.187 of 12.3.1991, which was decreed on 21.9.1993. However, the Ist appellate Court set aside the judgment and decree of the trial Court and accepted the appeal of the Municipal Council and suit of the vendor of plaintiff was dismissed, vide judgment and decree dated 14.10.1996. The regular second appeal filed by Raghbir Singh was also dismissed by the High Court. Hence, the suit is not maintainable. The defendants claimed that the disputed street is still in existence. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the original plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 6. The parties to the litigation, brought on record the oral as well as documentary evidence, in order to substantiate their respective stands. Regular Second Appeal No.1367 of 2007 3 7. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiff, by virtue of impugned judgment and decree dated 25.7.2005. 8. Aggrieved by the judgment and decree of the trial Court, Bishno Devi (deceased) original plaintiff, through her LR-appellant, filed the appeal, which was dismissed as well, by the Ist appellate Court, vide impugned judgment and decree dated 6.10.2006. 9. The appellant-Savitri Devi, LR of original plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 11. Ex-facie, the argument of the learned counsel that the Courts below have illegally non suited the plaintiff only on the ground of existence of earlier judgment dated 14.10.1996 of Ist Appellate Court, confirmed by the High Court and since the plaintiff was not a party to the earlier suit, so, the previous decree will not operate as res-judicata against the original plaintiff, is neither tenable nor the observations of this Court in case M/s Victor Industries & Ors. v. Banarsi Lal 2007 (1) Civil Court Cases 370 (P&H), are at all applicable. In that case, the landlord had earlier filed an ejectment petition and an order withdrawing the same was passed. The projection in the aforementioned petition was entirely different than the one given in the ejectment petition, but no record whatsoever was placed on record. So, while deciding the petition under the East Punjab Urban Rent Restriction Act, 1949 and on the peculiar facts and circumstances of that case, it was observed that “plea of res-judicata has to be substantiated by placing on record the respective pleadings of the parties in the previous proceedings.” Regular Second Appeal No.1367 of 2007 4 12. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the plaintiff as regards the present controversy is concerned. 13. As is evident from the record that the original plaintiff claimed that she had purchased the disputed plot from one Raghbir Singh, vide sale deed dated 28.6.1994. The defendants have carved out Scheme No.2 as contemplated under section 192 of the Act. They claimed that there is a street in the disputed portion as per the scheme, but its existence was denied by the plaintiff. It is not a matter of dispute that Raghbir Singh, vendor of the original plaintiff, filed civil suit No.187 of 1991, pertaining to the property in dispute, which was decided in his favour on 21.9.1993, but the judgment and decree of the trial Court were set aside in the wake of appeal of the Municipal Council by the Ist Appellate Court, vide judgment and decree dated 14.10.1996. The RSA filed by him was also dismissed. The defendants have produced copy of judgment dated 14.10.1996 (Ex.D4) and its decree (Ex.D5) and copy of judgment dated 29.11.1996 passed in RSA (Ex.D6). In other words, as the defendants have duly produced the copies of earlier judgments and decree (Ex.D4 to Ex.D6), therefore, it cannot possibly be saith that the defendants have not substantiated the plea of res-judicata, as urged on behalf of the appellant-plaintiff. 14. That means, the instant controversy raised by the original plaintiff in the present suit had already been decided in civil suit No.187 of 1991 filed by her vendor Raghbir Singh, wherein, it was held that the plot in dispute is a part of street of town planning. Therefore, the present plaintiff cannot have the better right than her vendor as she had stepped into his shoes and is bound by the earlier decree. The Ist appellate Court has acknowledged the following observations of this Court contained in the order dated 29.11.1996 (Ex.D6), pertaining to the earlier litigation:- “The lower appellate Court after having examined the Scheme Plan Ex.D1 has come to the conclusion that the Regular Second Appeal No.1367 of 2007 5 plot, in question, is a part of the street. The finding recorded by the appellate Court is a pure finding of fact. No interference is called for. Dismissed. In order to frustrate that Judgment, the original owner of the plot, got the sale deed dated 28.6.1994 executed in favour of Bishno Devi. Savitari Devi is the wife of Balbir Singh. The plaintiff herself has produced Ex.P.3 which is part of Town Planning Scheme area No.2 Part-I. From the perusal of the same, it is revealed that at the fag end of the road, the plot, in question, is situated. The Hon'ble Punjab and Haryana High Court has advised the subordinate judiciary time and again that no injunction should be granted regarding the street. Otherwise also, in the present case, it is not disputed that street was restored as back as on 8.11.1996 and document Ex.D.5 is on the file.” 15. Meaning thereby, the Courts below have rightly negatived the claim of the plaintiff in this respect. Therefore, the contrary arguments of the learned counsel for the appellant-plaintiff “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 16. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail the findings of the Courts below in this context. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff, in this relevant behalf, have already been duly considered and dealt with by the Courts below. 17. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well-articulated and well-reasoned concurrent findings of fact that as per Town Planning Scheme No.2, the disputed portion is a street and the plaintiff has no right, title or interest in it. The matter has already been decided upto High Court Regular Second Appeal No.1367 of 2007 6 level. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 18. Above being the position, it is apparent that the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 20. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 10.8.2010 Judge AS