R.S.A. No.1915 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No.1915 of 2009 (O&M) Date of decision:- 10.11.2010 Deepak Sharma ... Appellant Versus Municipal Corporation & Anr. ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Arun K. Kundal, Advocate, for Mr. Puneet Gupta, Advocate, for the appellant. Mr. Harsh Aggarwal, Advocate, for respondent No.1. Gurdev Singh, J (oral) Appellant/plaintiff – Raj Kumar filed suit for permanent injunction restraining the respondent/defendant – Municipal Corporation, Ludhiana, restraining it from making any street through his property situated in Durgapuri Haibowal Kalan, Ludhiana, fully detailed in the plaint. The suit was decreed by Civil Judge (Sr. Division), Ludhiana, vide judgment dated 20.2.2007. The defendant preferred an appeal against that judgment and decree, which was accepted vide judgment dated 21.3.2009 and the suit of the plaintiff was dismissed. Against that judgment and decree the plaintiff has come up with this second appeal. The case of the plaintiff, as pleaded in the plaint, is that he purchased the property in dispute vide registered sale deed dated 18.1.1993 from one Pardeep Kumar, who had purchased the same from one New R.S.A. No.1915 of 2009 (O&M) -2- Found Builders and M/s R.Sharma Associates, vide sale deed dated 15.6.1990. A boundary wall had been constructed around that property and the same consists of four rooms, one kitchen, one bath room, one latrine, one varandah, one stair case and a courtyard. The officials of the respondent came to the spot on 4.6.2001 and threatened to construct a street by demolishing this property. Therefore, he filed the aforesaid suit for permanent injunction. The suit was contested by the defendant. It has been pleaded in the written statement that the town planning scheme was sanctioned on 24.10.1984. This area was declared as unbuilt by the government vide order dated 6.4.1979. The said scheme was prepared on 13.9.1980 and published in the newspaper on 6.12.1980 and 7.12.1980. The objections were invited and after hearing those objections the scheme was amended and again published on 16.3.1984. The objections were invited to the amended scheme, which was finalised on 9.5.1984 and was sent to the government for final approval on 12.6.1984. In that scheme street of 20 feet in width has been shown on the western side of the house of the plaintiff and he has encroached upon that street up to 8 feet. He is not entitled to the equitable relief of permanent injunction. It has every right to remove that encroachment. In replication to the written statement, the plaintiff denied the contentions raised therein by the defendant and reiterated his averments made in the plaint. On the pleadings of the parties, the following issues were framed R.S.A. No.1915 of 2009 (O&M) -3- by the trial Court:- 1. Whether plaintiff is entitled to injunction as prayed for?OPP 2. Whether suit is not maintainable?OPD. 3. Whether plaintiff is estopped by his act and conduct from filing the present suit?OPD. 4. Relief. To prove his case, the plaintiff examined himself as PW3, Deepak Sharma PW1, Parshotam Lal PW2, Paul Dass PW4. On the other hand the defendant examined Satish Kumar Draftsman, DW1 and Dilbagh Singh DW2. After going through the evidence so produced by the parties and hearing their counsel, the learned trial Court decided all the issues in favour of the plaintiff and resultantly decreed the suit. As already said above, the defendant preferred an appeal against that judgment and decreed, which was accepted and the suit of the plaintiff was dismissed. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the plaintiff that it was wrongly concluded by the first Appellate Court that the suit is not maintainable in view of the powers conferred upon the defendant under Section 269 of the Punjab Municipal Corporation Act, 1976 (hereinafter referred to as the 'Act'). That power was never invoked by the defendant at any stage. Simply the case of the plaintiff is that he is coming in possession of the property in dispute as owner and the defendant wants to construct the street therein illegally and that the defendant miserably failed to prove that R.S.A. No.1915 of 2009 (O&M) -4- there was any encroachment made by the plaintiff in the street situated on the western side of his house and width of which is stated to be 20 feet. When that finding was recorded by the trial Court and upheld by the First Appellate Court, the suit of the plaintiff should have been decreed. On the other hand it has been submitted by learned counsel for the defendant that as per site plain proved on the record by Satish Kumar Draftsman, DW1, encroachment has been made by the plaintiff in the street to the extent of 8 feet and that witness during his examination-in-chief, which was recorded by means of his affidavit, specifically stated that such encroachment had been made by the plaintiff. Therefore, it is to be concluded from that evidence that such encroachment has been made by the plaintiff in the street and is not entitled to the equitable relief of permanent injunction. He further submitted that defendant can remove any encroachment made in the street by invoking the power under Section 269 of the Act and in case the suit of the plaintiff is to be decreed, that right of the defendant be preserved. Concurrent findings were recorded by both the lower Courts that plaintiff is the owner in possession of the property in dispute and has not made any such encroachment in the street. No doubt Satish Kumar Draftsmen, DW1 made deposition about the encroachment made by the plaintiff in his affidavit tendered by way of examination-in-chief, but he made categorical admissions during his cross-examination that no such encroachment has been made by the plaintiff in the street on the western side, the width of which is 20 feet. He even admitted the correctness of the R.S.A. No.1915 of 2009 (O&M) -5- site plan proved by the plaintiff on the record. He also admitted the fact that house of the plaintiff is there since year 1984, when the alleged scheme is alleged to have sanctioned. There is no ground for upsetting the findings recorded by the lower Courts that no such encroachment has been made by the plaintiff in the street. No doubt the defendant has the power to remove the encroachment but that power was never invoked at any stage. The First Appellate Court committed an illegality while holding that the suit of the plaintiff was not maintainable. The plaintiff never challenged any such notice under Section 269 of the Act and he came with the prayer for permanent injunction restraining the defendants from carving out a street though his constructed house. When the defendant failed to prove any encroachment on the street, he was entitled to relief of permanent injunction so prayed in the plaint. In view of above discussion, this appeal is hereby accepted. The judgment and decree of the First Appellate Court is set aside. The suit of the plaintiff is decreed and the defendant is perpetually restrained from carving out a street through his property except in due course. The appeal is accordingly disposed of. November 10, 2010 (Gurdev Singh) tripti Judge