472 RSAN053 of 1988 1 1 IN TI I8GH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSAN0153 of 1988O8Ml Dateofdecision 382Oll m Ved Parkashand another r Appellants 0 0 versus I t5 Punjabi Market Association etc I eeeee Z CORAM HONBLE MR JUSTICE KCPURI m I Present1 Mr JICSibal Senior Advocate with Mr Anil Shukla Advocate for the appellants Mr AkshayBhan Advocateand Z Mr SantoshSharma Advocate for the rn KCPURI J 7 Z tl This appealis directed by againstthe judgment and decreedated2891987 passedbyShri RDAneja Additional District Judge Narnaul vide which the appealpreferredby the againstthe judgmentand decree dated 309 1976 passedby Shri KCGupta Sub JudgeIst Class Rewariwas dismissed 2 Brieflystated that the allegations of the plaintiffsare that plaintiffNo l had purchased the plot marked as ABCD in the site plan ExPW212 boundedas underl Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 473 J RSA Nol53 of 1988 2 r Eastl Westl Gandi Gali and then theshopofAnant Ram Etc Northl Gali and shopsetCe Southl Situated in Rewari from the Rehabilitation Departmentvide Deed dated3011968 on 2251968 for a sum ofRs301001 and it is a Association under the Societies Act and Tara Chand 1S its President and is authorisedto flIe the suit on behalf of the e Il Association il 0 0 3 It has been 61rtherpleadedthat 37 plotswerecarved out and were transferred to plaintiffNo 2 to 58 who are the Members of the C9 I PunjabiMarket Association Defendant Nos 1 and 2 had illegallytaken ofa partoftheir plotsmarkedbylettersBEFH and also a pan of Z Abchak marked by letters BGHI on 11972 and have also raised C constructlOll thereonwithout any rightor interest in the said portionslt I has been 8irther pleadedthat the above said portionswere encroached Z uponat the instanceof defendantNo3 who has got no rightto transfer it 11 to 3 person The present Slllt for of the portionBEFG after mmo constructionand for injunctiondirecting defendmts 1 Z 1 No l and 2 to remove encroachmenthasbeenfiled Ll 4 The defendantscontestedthe suit DefendantsNo 1 and 2 filed joint written statement whereas defendant No 3 filed separatewritten statement 5 DefendantsNo 1 and 2 took certain preliminary objections that the plaintiffshave got no locus standi to file the suit the Suitis not properlyvalued for purposesof couree and jurisdictionthe suit is not properly no notice was served upon defendant No 3 under Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 474 l RSA No153 of 1988 3 1 Section 52 of the ana MunicipalAct and as such suit is liable to be dismissed 6 On merits theycontrovertedtheallegations ofthe plaintiffsand assertedthat the portionsin dispute were partof the publicstreet and as such it vested in the MunicipalCommittee who had sold it to them for Rs331e in February1968 after pennissionSom the Deputy l Commissioner GurgaonTheyfurther statedthat priorto their purchase 0 theywere in possession ofthe disputed portion as licenseesunder defendant 0 No 3 Theyalso took some additional pleasthat theyhad spentin good I C5 faith Rs140001 in makingconstructionuponthe disputedland and the I plaintifTs never objected to their constructionand as such theyare estopped Z bytheir acts and conduct to flle the suit and ifit is provedto be the propeny lr ofthe plaintiffsthentheyare entitledto Rs140001 from them 7 DefendantNo 3 also took some preliminary objections thatthe I t3 suit is bad for and mijoinderofnecessary partiesthat the suit Z is not maintainable in the presentform and that the suit againstlt is not CJO maintainable for want ofnotice under Section 52 ofthe HaryanaMunicipal m Z Ac tl 8 On merits it stated that the land in dispute wasa partof the publicstreet and it was not usedbythe publicas street becauseit is situated in one corner and defendantNo 2 was the licenseeunder it Since longtime therefore it sold the disputedland to defendantNo l afler permlSSlOOfrom the DeputyCommissioner GorgaonIt also denied the other allegations of the plaintiffsand statedthat the utilityand value ofthe plaintiffs land has not decreasedwith the saleofthe disputed land Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 475 RSAN0153 of 1988 4 Ipe 4 9 From the pleadingsof the partiesfollowingissues were framedon 289741 1 Whether theplaintiffNol is the owner ofthe property markedABCD as OPP 2 Whether the plaintiffsociety1S a bodyand Sh Tara Chand is its President and has locus standito 1 61ethe suit2OPP r 0 3 Whether the propertyin dispute was evacuee property 0 and hasbeen sold to theplaintiffs as alleged2 OPP I 9 4 Whether the defendantsNo 1 and 2 have no rightto I raise constructionson the suit property2 OPP Z 5 Whether the portionmarkedBGM is abchak oGandhi L Galil2Ifso to what effect2OPP 6e Whether the plaintiffshave suffered specialinjurydue I to the constructionas alleged2OPP Z 7 Whether the suit 1S properlyvalued for purposes of CQ courtefeeand OPP 1 Z 8 Whether the plaintlS not properly If so to Qm what effect2OPD 9 Whether the notice uls 52 of the HaryanaMunicipal Act is necessary2 Ifso to what effect2OPD 10 Whether the propertyin disputeis a part of public streetand has vested 111the defendantCommitteeNo 32OPD 11 Whether defendantNo l has raised constructionswith Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 476 RSA No53 of 1988 5 the permission of the defendantNo 32 If so to what effect2OPD 12 Whether defendant No 2 was an old licensee of defendantNO32Ifso to what effect7OPD 130 Whetherthe suit is not maintainableas alleged2 OPD 14 Whether the plaintiffs are estopped by their acts and 1r conductfrom filingthe suit2OPD 0 15 Whetherdefendant No 1 is entitled to receive Rs 0 140001 as for the constructionraisedby I 0 them over thedisputed property2 OPD i I 16 WhetherdefendantNo l hasvalidlypurchased the suit Z from defendantNo 32 If so to what effect7 lr OP I 17 WhetherdefendantNo l has raised constructionson thesuit propertybonafide and in goodfaith2 If so to Z what effect2OPD QO 18 Whetherthe suit is bad for misoinder and non m Z joinderofnecessaryparties2 OPD m 19 Whetherdefendant Committee was competent to sell thepropertyin dispute to defendantNo 17OPD 20 Whetherthe defendantsare colludingwith each other the suit property7 If so to what effect2OPP 21 Relief 100 Both the partieshad led their oral as well as documentary evidence on the aforesaid issues The trial Court aer hearingthe leamed Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 477 a RSAN053 of 1988 6 V counsel for the partiesdecreedthe SUit of the plaintiffvide judgment and decreedated3091976 11 Aggrievedby the said judgmentand decree the defendants preferredappealand the leamed Additional District JudgeNamaul vide judgmentand decree dated 2881987 dismissed the appealof the defendantSe 1 lr 12 Still feelingdissatisfiedwith the aforesaid and 0 decreespassedby both the Courts belowthe have A0 preferred the presentappeal I C5 13 The Oled Civil Misc Petition No8405eC I of 2010 for placingon record substantialquestions of law which reads as Z under1 2 1e Whether the of the Courts below are liable to be set aside as theyhave the vanous I evidenceon record viz r a9 Exhibit DW 1411which is the authenticatedsiteplan Z ofthe area sold to ie 1410Square Yards and not the area indicated in the boundaries C mentionedin the saledeedExhibit DW711 b9 The endorsementat the foot ofExhibit DW 14111S Z similar to the endorsementmade in PW811 and PW812 and therefore Exhibit DW1411 has been wrongly 0m rejected 0 The Deed ExPW711 clearlyshows that thereis no drain 64abchakl to the East ofthe shopof defendantNo l and thus the findingthat portionmarked BHJ on the planExhibit PW 212 belongsto the Plaintiff is wrong e d9 The documents ExDW1517 Exhibit DW1518Exhibit DW 1511and Exhibit DW1514 show that there is a street on the Western side of the PunjabiMarket These documentshave been wrongly by the Courts below Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 478 RSAN0153 of 1988 7 4 e9 The Courts below have wronglyheld againstthe evidence on record in Law thatthereis no publicstreet at ALEI on the planExhibit PW 212 which vested in the MunicipalCommittee 2 Whether the Courts below have wronglydenied the benetlts of Section 51 of the Transfer of Propertyact to the defendant who hasmadethe constructionofvaluable Pucca structure coveringthe area of 333 Squareyards after gettingdue approvalfrom the Municipal authorities 1 C 14 I have heard learned counsel for the partiesand have gone 0 0 through the recordsofthe case with their able assistance 15 Shri JCSibal leamed Senior counsel for the appellantshas t5 I submitted that case of the plaintiffsis that the suit propertyhas been allotted to the plaintiffNol for constructionofshops It is submittedthat Z the plaintiffshave failed to prove the fact that suit propertywas allotted to petitioner No l alongwith otherproperty In the absenceof such evidence I suit of the plaintiffsshould have been dismissed Continuing with the said Z attack Mr Sibal leamed senior counsel has lrther submittedthat original Q0 record regarding allotment of land to plaintiffNol is missingThe area I7 shows that the area allotted to theplaintiffsis different at different stage In Z 4 ExlOW1411 area has been shown as 1451squareyardswhereasin ExDW71 Qm 1 the area shown 1S different The documentsExDW1517 ExDW1518 ExDW1511 and ExDW1514 show that thereis a street which is the subject matterofthis suit So both the Courts below havecommiued grave enor of and the evidence regardingownership ofthe plaintiffs in respectofthe suit land 16 Learned counsel for the has 8lrther submittedthat SUlt land was in fact the propertyowned byMunicipalCommittee Rewarie Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 479 1 8 1 RSANo153of 1988 4 No3beforethe trial Court The saidpropertywas soldto the defendant ofRs9331 in the monthof February1968 for a consideration fromDeputyCommlssioner The alter obtainingpermission have Rs140001in goodfaith in makingthe construcOone never to the and as suchtheybe view of 1 Act 1973 of the Act The CC Section 1726g1 of the Haryana 0 Municipal has the to sell the publicstreetif it is no longer 0 thedeadend ofthe streetand It is submittedthat suitproperty1S I t5 Committeewas wellwithinits rightsto sellthe same to the the Nosl and2 Even otherwise counsel for the Z 151 of the Code of Civil has that under 2 has been filed alongwith the affidavitof Procedurein short the alongwith to show that the suit propertyis dead 0 Committeehasgot the rightto alienatethe endofthe street and Z Soboth the Courts below have committed same infavour ofthe m errorby not holdingthat suit property was a part of deadend of street and 7 Z CommitteeRewarihasrightlytransferredthe same in favour of theappellant counselfor the has 61rthersubmittedthat in 17 51 of the Transfer of PropertyAct the are view of Section the ofthe propertyEven ifthe plaintiffNol1S entitledto thesuit propertyin that case the are readyto held owner of the Nol as orderedby the Co The ontheir businesssince 1968 and it would be not are carrying Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 480 9 RSANo53 of 1988 4 ofjustice to dislodgethem as itwould amount to deprivethe 18 In replyto the above saidsubmissionsleamedcounselfor the has the judgment and decrees passedby boththe Courts below 19 I have consideredtherival submissionsmade by leamed 1 the recordsof the case counselfor the partiesand have gone O carefullye 0 Itis settled1awthatHighCourt can onlyinterfereltl theregular I 20 C5 secondappeal in case substantialquestionof law has arisen The question I of fllct on which concurrent has been retumedby the Courts below Z secondappealIn the presentlis the cannotbe interferedin the of propertyallottedto the lr is whetherthe suit property1S part No There is concunent of fact recordedby both the rmo allotted to plaintiffNo The minor Courtsbelow that said propertywas Z ExlW1 and DW711 are not sufficientto conclude variationsshown in OO that suit propertywas not allotted to No The documents 7 Z ExDW1511 and ExDW1514 as referredby the ExDW1517 tl fortheappellant do not provethat suitpropertyis partof a learnedcounsel 1 below have givena concurrentfindingof fact public street Both the Courts thatsuit propertyis notthepartofpublicstreet The argumentadvancedby 1 Mribalthat theMunicipalCommitteehastherightto alienatle deadend ofthestreet is not available111view of Section 172g1 ofthe Act as the suit propenyis not a partof publicstreete The concurrent 8ndingof fact recordedbyboth the Courts below that suit property iS nota partof public Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 481 1 10 of 1988 4 cannotbe interfered in the second appeal Municipal street to alienate the propertyln favourof the Committeewas not the same did not vest in it So any tmnsferbyMunicipal since Committee in favour ofthe has been rightlyheld to be invalid by underSection 151 CPC 1S boththe Courts below So far as the counselfor the has triedtoconvincethe court that j O The underSection151oftheCPC doesnot advancethe case of 0 the to provethat the suit propertyls a part of publicstreet and as I C5 such the said standsdismissed Soar as the argument advancedbycounselfor the in 21 Z ofSection 51 of the Transferof PropertyAct is concemedi not respect 1 availableto the From the perusal of the flle it is revealedthat I ofthe plaintiffhas also beenallottedploton whichhe hasconstructed C3 justopposite the suit property The suit lmd Z theshopwhich 1S with other land was allottedto plaintiffNo l which was at one time OO The membersof plaintiffNol distributedthe land evacuee Z themselvesfor constructingshopsand out of those shopsone has been allottedto the fatherofthe 22 Both theCourts below haverightlyheldthat thepublicstreet is that street which is maintainedbyMunicipalCommitteeand that defendants havefailed to prove that Committeeis the said streetsThere isnothing on the file to show that boththe Courts below have thedocumentary as well as oralevidence 23e In view oftlheabovediscussion the substantial 4 Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 482 11 IRSA No53 of 1988 l A oflaw 24 In viewofthe abovediscussion theappeal is without any merit andthe same standsdismissed A copy of this besent to the trial Court for strict 25 6 9 1 JUDGE August 3rd 2011 0 SV C0 1 I 0 I 1 Z a2 0 I Z CO e7 Z r Batra Amit Sh. Charanjit Batra 2012.06.06 12: 07 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document