R.S.A.No.2361 of 1987 alongwith 11 connected appeals -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.2361 of 1987 Prem Chand (since deceased) through his LRs. Smt.Pushpa Devi & Sunil Kumar ...Appellants Versus Murti Shivji Maharaj and another ...Respondents 2. Regular Second Appeal No.2362 of 1987 Sant Lal and Ram Parkash ...Appellants Versus Murti Shivji Maharaj and others ...Respondents 3. Regular Second Appeal No.2363 of 1987 Jeet Ram (since deceased) through his LRs. Kishan Wanti & others ...Appellants Versus Murti Shivji Maharaj and another ...Respondents 4. Regular Second Appeal No.2364 of 1987 Kehar Singh ...Appellant Versus Murti Shivji Maharaj and others ...Respondents 5. Regular Second Appeal No.2365 of 1987 Krishan Lal ...Appellant Versus Murti Shivji Maharaj and another ...Respondents 6. Regular Second Appeal No.2366 of 1987 Barkat Ram (since deceased) through his LRs. Smt.Iqbal Devi & others ...Appellants Versus Murti Shivji Maharaj and another ...Respondents R.S.A.No.2361 of 1987 alongwith 11 connected appeals -2- 7. Regular Second Appeal No.3059 of 1987 Municipality Ladwa ...Appellant Versus Murti Shivji Maharaj and another ...Respondents 8. Regular Second Appeal No.3060 of 1987 Municipality Ladwa ...Appellant Versus Murti Shivji Maharaj and others ...Respondents 9. Regular Second Appeal No.3061 of 1987 Municipality Ladwa ...Appellant Versus Murti Shivji Maharaj and another ...Respondents 10. Regular Second Appeal No.3062 of 1987 Municipality Ladwa ...Appellant Versus Murti Shivji Maharaj and another ...Respondents 11. Regular Second Appeal No.3063 of 1987 Municipality Ladwa ...Appellant Versus Murti Shivji Maharaj and another ...Respondents 12. Regular Second Appeal No.3064 of 1987 Municipality Ladwa ...Appellant Versus Murti Shivji Maharaj and others ...Respondents Date of Decision: 21.7.2011 CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR R.S.A.No.2361 of 1987 alongwith 11 connected appeals -3- Present:- S/Shri C.B.Kaushik & Parminder Singh, Advocates for the appellants. Mr.Sudhir Mittal, Advocate for respondent No.1- Murti Shivji Maharaj (refused to argue). Mr.Sanjay S.Chauhan, Advocate for respondent No.2-MC. M ehinder S ingh S ullar , J . As identical questions of law and facts are involved, therefore, I propose to dispose of above indicated 12 regular second appeals, by virtue of this common judgment, in order to avoid the repetition, as the same were also decided by the Ist appellate Court, vide single impugned judgment dated 4.6.1987. However, the facts have been extracted from RSA No.2361 of 1987, titled as “Prem Chand Vs. Murti Shivji Maharaj and another” for ready reference in this context. 2. The matrix of the facts, culminating in the commencement, relevant for deciding the instant appeals and emanating from the record, is that Murti Shivji Maharaj, installed in the Mandir Shivala Ram Kundi respondent No.1-plaintiff (for brevity “the plaintiff-Mandir”) filed six civil suits, through its Vice President, against Prem Chand son of Kedar Nath and others appellant-defendant-tenants (for short “the defendant-tenants”) and the Municipality, Ladwa -respondent No.2- defendant No.2 (in short “the defendant-MC”) for a decree of possession, inter-alia pleading that it (plaintiff-Mandir) is the owner of the land, comprised in Khewat No.639, Khatauni No.757, bearing Khasra No.168, measuring 9 kanals 17 marlas, as per jamabandi for the year 1975-76 (Ex.P9), situated in the area of village Ladwa, Tehsil Thanesar, District Kurukshetra. The plaintiff-Mandir claimed that the defendant-tenants have illegally encroached upon the land in dispute to the extent of 3 karams x 2 karams, which is part of its property. The encroachment by the defendant-tenants came to its knowledge, in the wake of demarcation of its property. 3. Levelling a variety of allegations and narrating the sequence of R.S.A.No.2361 of 1987 alongwith 11 connected appeals -4- events, in all, according to the plaintiff-Mandir that it is owner and in possession of the property in dispute, bearing Khasra No.168, but some part of it (3 karams x 2 karams) has been encroached upon, by the defendant-tenants, who are claiming their tenancy under the defendant-MC. The plaintiff-Mandir asked them to admit its claim and to hand over its vacant possession, but in vain, which necessitated it to file the indicated civil suits. On the basis of aforesaid allegations, the plaintiff- Mandir filed the suits seeking a decree for possession of the disputed portion against the defendants, in the manner depicted hereinbefore. 4. The defendants contested the claim of the plaintiff-Mandir and filed their separate written statements, inter-alia pleading certain preliminary objections of, maintainability of the suits, estoppel, limitation, misjoinder & nonjoinder of necessary parties, notices under section 106 of the Transfer of Property Act, under section 52 of the Haryana Municipal Act, 1973, cause of action and locus standi as the plaintiff-Mandir was stated to be neither legal entity nor a registered society. 5. The case set up by the defendants, in brief in so far as relevant, was that the District Board was the original owner of the six disputed plots/shops (alongwith other property), which were in possession of the defendant-tenants. The suit property was subsequently transferred by it (District Board) to the defendant- MC, by passing a valid resolution. The District Board was collecting the rent from the defendant-tenants, prior to transfer of the shops/property in dispute and after its transfer since 1.4.1958, the defendant-MC is regularly collecting the rent of the premises in dispute from them. It was denied that the defendant-tenants have illegally encroached upon the land, rather they claimed their possession as tenants under the defendant-MC. 6. Sequelly, the defendant-tenants pleaded that they were in possession of the property in dispute as tenants under the District Board prior to 26.6.1957 and remained as tenants of District Board upto 31.3.1958 on payment of regular rent. Thereafter, in the wake of transfer of the land by the District Board to the R.S.A.No.2361 of 1987 alongwith 11 connected appeals -5- defendant-MC, they are in possession as tenants of the premises in dispute and the defendant-MC is regularly collecting the rent after 31.3.1958. In this manner, it was claimed that the defendant-MC is the owner, the defendant-tenants are in possession of the property in dispute and the plaintiff-Mandir has got no right, title or interest in it. It may be added that the defendant-tenants have toed the remaining line of pleadings as contained in the written statement of defendant-MC. It will not be out of place to mention here that all the defendants have stoutly denied all other allegations contained in the plaints and prayed for dismissal of the suits. 7. Controverting the allegations of the written statements and reiterating the pleadings of the plaints, the plaintiff-Mandir filed the replications. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case :- 1. Whether the plaintiff is owner of the land, if so its effect ?OPP 2. Whether defendant no.1 has illegally entered the part of the suit land as alleged in para no.3 of the plaint ?OPP 3. Whether the plaintiff has no locus standi to file and maintain the present suit?OPD 4. Whether the plaintiff is not a registered society, if so its effect ?OPD 5. Whether the suit is time barred ?OPD 6. Whether the plaintiff is estopped by its own act and conduct from filing and maintaining the present suit?OPD 7. Whether the suit is bad for mis-joinder of the parties and causes of action ?OPD 8. Whether no valid notice under section 52 of the Haryana Municipal Act, 1973 has been served upon the defendant no.2 ? If so its effect ?OPD 9. Relief. 8. Thereafter, the case was slated for evidence of the plaintiff-Mandir. 9. The plaintiff-Mandir, in order to substantiate its claim, examined Hari Ram Gupta as PW1, who has toed the line of pleadings contained in the plaint and deposed that the plaintiff-Mandir is the owner of the land, bearing Khasra No.168 and the defendant-tenants have encroached upon the disputed portion/part R.S.A.No.2361 of 1987 alongwith 11 connected appeals -6- of its property. He has also produced on record, the photo copy of registration certificate (Ex.P1), photo copy of notice (Ex.P2) and copies of resolutions (Ex.P3 and Ex.P4). Sequelly, PW2 Kishan Chand, Teacher Patwar School, stated that he had demarcated the disputed portion of the land and proved his demarcation report (Ex.P5). Similarly, PW3 Brij Lal, Sanitary Inspector, Ladwa produced the photo copies of the letters (Ex.P6 to Ex.P8). The plaintiff has also produced on record copy of jamabandi for the year 1975-76 (Ex.P9) in documentary evidence. 10. The defendants, in order to rebut the oral as well as documentary evidence, brought on record by the plaintiff-Mandir, examined Prem Chand defendant-tenant as DW1, who has maintained that earlier, he was a tenant under the District Board and was regularly paying the rent. Thereafter, the land was transferred to the committee and he became the tenant and was regularly paying the rent to it (defendant-MC). He has produced on record the copy of site plan (Ex.D1) of the shop and rent receipt (Ex.D5). 11. Likewise, Suresh Bhardwaj, Secretary of the MC, appeared as DW2 and deposed, on oath, on the basis of summoned record, that the land in dispute was transferred by the District Board to the defendant-MC, by means of resolution No.28 dated 26.6.1957 (Ex.D4), conveyed through letter bearing No.5310 dated 3.1.1958 (Ex.D2). The defendant-MC also received the letter dated 19.5.1958 (Ex.D3), showing the defendant-tenants in its possession and payment of rent. Ex.D4 is the copy of the resolution of transfer of the land. He has also produced on record the copy of notice under section 49 of the MC Act (mark-A), which was issued on behalf of plaintiff-Mandir in the year 1965 and its reply mark-B in the same sequence. DW3 Ram Sawroop, Perokar of the MC, has stated that the land in dispute belongs to District Board, Karnal, which was subsequently transferred to the Municipal Committee. It will not be out of place to mention here that the parties to the lis have produced same set of their respective evidence in all the civil suits. R.S.A.No.2361 of 1987 alongwith 11 connected appeals -7- 12. The trial Court, after taking into consideration, decided issue Nos.1, 2, 5 and 6 against the plaintiff-Mandir, while issue Nos.3 and 4 were adjudged in its favour and issue Nos.7 and 8 were answered against the defendants. 13. On ultimate analysis of the evidence on record and in view of findings on various issues, the trial Court dismissed the suits of the plaintiff- Mandir, by virtue of judgment and decree dated 6/11.11.1986. 14. Aggrieved by the decision of the trial Court, the plaintiff-Mandir filed the appeals, which were accepted by the first appellate Court, by way of common impugned judgment and decree dated 4.6.1987. 15. The appellant-defendant-tenants as well as the defendant-MC, did not feel satisfied with the impugned judgment and decree of the first appellate Court and preferred the instant regular second appeals. That is how I am seized of the matter. 16. At the very outset, the learned counsel appearing on behalf of respondent No.1-plaintiff-Mandir, refused to argue the matter. However, having heard the learned counsel for the remaining parties and having gone through the entire evidence on records of these more than 24 years old appeals, with their valuable help, to my mind, the following substantial questions of law are involved in the instant appeals:- (i) As to whether the Ist appellate Court was legally justified in decreeing the suits of the plaintiff-Mandir, after considering the irrelevant evidence and ignoring the most relevant and admissible evidence? (ii)As to whether the impugned judgment and decree of Ist appellate Court is based on surmises, conjectures, misreading of evidence, inculcating and perpetuating the miscarriage of justice to the defendants? 17. As is evident from the record that plaintiff-Mandir claimed that the disputed portion/shops under the tenancy of defendant-tenants, is a part of its land bearing Khasra No.168 as per jamabandi for the year 1975-76 (Ex.P9) as described in the demarcation report (Ex.P5). On the contrary, according to the defendant-MC R.S.A.No.2361 of 1987 alongwith 11 connected appeals -8- that the District Board was the owner of the shops in dispute and the defendant- tenants were in possession of the same. Earlier, they were paying the rent to the District Board, who transferred the property in dispute to the defendant-MC, vide letter/resolutions (Ex.D2 to Ex.D4). Thereafter, it (MC) became owner of the disputed portion/shops w.e.f. 1.4.1958 and since then, the defendant-tenants are regularly paying the rent to it (MC). 18. Having completed all the codal formalities and in view of oral as well as documentary evidence brought on record by the parties, the trial Court recorded the finding of fact that the defendant-MC is the owner of the property in dispute, the defendant-tenants are in its possession and they are regularly paying the rent to it. The disputed plots/shops are not the part of property, bearing Khasra No.168 of plaintiff-Mandir. Strange enough, but the Ist Appellate Court, without discussing the entire evidence on record in right perspective, ignoring the relevant and convincing evidence and without recording the valid reasons, reversed the decree of the trial Court, by way of cryptic impugned judgment, which, in substance, is (paras 15 and 16) as under:- “In these circumstances, the fact also requires consideration that a Local Commissioner was appointed to demarcate the property comprised of Khasra No.168. The Local Commissioner is Shri Krishan Chand (PW2). He has furnished a report copy of which is Ex.P.5. He also found the pucca points and thereafter prepared a report Ex.P.5. He has found the encroachment in Khasra No.168 and has specifically mentioned in Ex.P.5 his report about it. There is no reason as to why this report should not be considered in face of the fact when the respondent did not bring anything whatsoever on record to contradict the same. The mere production of a site plan Ex.D.1 would not falsify the case of the appellant. The contention of the learned counsel for the respondent during the course of arguments that the report is without notice is of no avail when several persons have been found present on the spot when the demarcation was done and when there is no evidence of the respondent that the Local Commissioner did not visit the spot. So, in view of this evidence, one cannot hold by any stretch of R.S.A.No.2361 of 1987 alongwith 11 connected appeals -9- imagination that the land of Khasra No.168 ever vested in the District Board or in the Municipality or the Municipality had a right to transfer the land. The Municipality never get the land demarcated from anyone. If the Municipality starts charging rent of such a portion in a illegal manner it does not mean that the occupier gets the rights of owner or that of the lessees.” 19. As is clear, the main grounds, which appear to have been weighed with the first appellate Court in this behalf, are that plaintiff-Mandir is shown to be owner and in possession of the land bearing khasra No.168 in jamabandi (Ex.P9) and encroachment on it, is proved by the report (Ex.P5) of the Local Commissioner and that the property as such cannot be transferred by the District Board to the defendant-MC. Here, to me, the Ist appellate Court slipped into deep legal error in this relevant connection. 20. As indicated earlier, the plaintiff-Mandir is claiming ownership of the suit property only on the basis of solitary jamabandi for the year 1975-76 (Ex.P9), while on the contrary, according to the defendants, the District Board remained owner of the disputed plot/shops and the defendant-tenants were in their possession till 31.3.1958. Thereafter, the disputed plots/shops, which adjoin the berms of metaled road, were transferred to the defendant-MC, by means of resolution/letters (Ex.D2 to Ex.D4). Thereafter, from 1.4.1958, the defendant-MC became the owner and the private defendants remained in possession of the disputed plots/shops as tenants. There is no legal impediment in transferring the disputed shops by the District Board to the defendant-MC, by virtue of letter/resolutions (Ex.D2 to Ex.D4). Moreover, it cannot possibly be denied that plaintiff-Mandir is legally required to prove its case to the hilt, by adducing cogent evidence on record that it was owner of the disputed plot/shops prior to 1958, when it was transferred to the defendant-MC. It cannot depend or take the benefit of deficiency/weaknesses in the evidence of the defendants. To my mind, the plaintiff-Mandir has miserably failed to prove its case in this respect. R.S.A.No.2361 of 1987 alongwith 11 connected appeals -10- 21. It is not a matter of dispute that the plaintiff-Mandir is described as owner and in possession of Khasra No.168 in jamabandi (Ex.P9), but the same would not come to its rescue and deserves to be ignored for more than one reason in this direction. At the first instance, the plaintiff-Mandir has utterly failed to connect the plots/shops in dispute as part of its land, bearing Khasra No.168. The mere demarcation report (Ex.P5) of the Local Commissioner is not sufficient, particularly when PW2 Kishan Chand, who prepared the demarcation report (Ex.P5), has categorically admitted in cross-examination that no notice was issued to the committee before demarcation. The MC is governed by the provisions of the Municipal Act. If PW2 wanted to demarcate the land (adversely) affecting the rights of the MC, then he ought to have issued prior notice to the MC, to enable it to appoint some competent officer for the purpose of demarcation of the land in dispute. No cogent evidence is forth coming on record that either any notice was issued to the MC by the Local Commissioner or the MC, in exercise of its statutory powers, appointed/authorized any competent officer to participate in the demarcation proceedings. Above-all, under whose orders, PW2 conducted the demarcation remained unfolded mystery during the Course of trial. In the absence of the same, to me, no implicit reliance can be placed on the demarcation report (Ex.P5) in this relevant behalf. 22. Sequelly, the perusal of the evidence on record would reveal that the shops have already been constructed over the disputed plots, prior to 1958 and defendant-tenants are coming in its possession. They were paying the rent to District Board prior to 31.3.1958 and they started paying the rent to the MC with effect from 1.4.1958 when the disputed plot/shops, adjoining to the berms of the metaled Shahabad-Ladwa road, were transferred to it. There is no other cogent evidence on record to prove that the disputed shops, adjoining to the berms of metaled Shahabad-Ladwa road, are part of Khasra No.168 and belonging to plaintiff-Mandir. R.S.A.No.2361 of 1987 alongwith 11 connected appeals -11- 23. This is not the end of the matter. Likewise, in the jamabandi (Ex.P9), the plaintiff-Mandir has been described to be in possession of the entire portion, which contradicts its case that the defendant-tenants have encroached upon some portion of it, which is not so detailed in the revenue record. Moreover, the nature/kind of the land has been described as Pond (Gairmumkin Talab), situated in the area measuring 9 kanals 16 marlas and well (Gairmumkin Chah Abnoshi) in the remaining part, measuring 0 kanal 1 marla, which is totally contrary to the existing position of the plots, depicted in site plan (Ex.D1), on which, the shops have been constructed adjoining to the berms of the metaled Shahabad-Ladwa road. Therefore, to my mind, the mere production of jamabandi (Ex.P9) is not sufficient to prove the case of the plaintiff-Mandir in this regard, particularly when its entries are totally contradicted by the site plan (Ex.D1), transfer letters (Ex.D2 to Ex.D4) and rent receipts (Ex.D5) etc. of rent paid by the defendant-tenants. 24. Not only that, the bare perusal of letter (Ex.D2) would reveal that the District Board was the owner and it transferred the plots/shops in dispute and other property, situated on the berms of Shahabad-Ladwa Road to the defendant-MC, vide resolution No.28 dated 26.6.1957. Ex.D3 is the letter dated 19.5.1958, by means of which, the record of the lease deeds of the shops on the Shahabad Ladwa road, was transferred to the committee, in which, the defendant-tenants are shown to be in possession of the disputed plot/shops and the factum of payment of rent, upto 31.3.1958 by them was recorded against their respective names in it. 25. Similarly, Ex.D4 is the copy of resolution No.28 passed by District Board in the meeting held on 26.6.1957, which is as under:- “Copy of resolution No.28 passed by the District Board, Karnal in the meeting held on 26.6.57. 28---Report by the District Engineer, Karnal that as desired by the Municipal Committee, Ladwa in their Resolution resolution No.13 dated 18.9.56 the following D.B. Approved. Roads lying within the Municipal limits of Ladwa, may be transferred to the Committee on the conditions R.S.A.No.2361 of 1987 alongwith 11 connected appeals -12- as detailed below:- Name of roads to be transferred 1. Ladwa Shahabad Road, from P.W.D. Road to culvert near Kila : 6-1 1315 ft 1449 2. Approach Road from P.W.D. Link road to Rest House:- 3-4 1100 ft 1465 3. Ladwa Indri Road situated within the city limits:- 13-10 1950 ft 245 Conditions of transfer. 1.(a) All right, title or interest in the said roads including the soil there, and all foot paths, grass berms, road side trees and Rest houses, poolies huts, subordinate quarters, well and other road side structures thereon adjacent to or used or occupied for the purpose of maintenance thereof be transferred. (b) All road making materials such as kankar, store metal, bajri, bricks, borders, sand, tar, bitumen etc., lying at the road side in transit or actually arranged for the road be transferred. 2. That the ownership and possession of the entire road land and of all the structures and trees standing thereon shall vest in Municipal Committee and the District Board will be relieved of responsibilities towards their maintenance. 3. The District Board shall be responsible for liquidation and all liabilities incurred in connection with the road upto the date of transfer. 4. The District Board shall spend the savings that will occur as the result of this transfer on the maintenance and/or improvement of other roads in their charge.” 26. Meaning thereby, it stands proved on record by cogent evidence that the disputed shops were already constructed over the plots, much prior to 31.3.1958 and the disputed plots/shops adjoining to the berms of the metaled Shahabad-Ladwa road, were duly transferred by the District Board to defendant- MC, by way of letter/resolutions (Ex.D2 to Ex.D4). The private defendants were in possession of the shops as tenants under the District Board before 31.3.1958 and after transfer of the property, they became tenants of the MC and are regularly paying the rent to it. The receipt (Ex.D5) of payment of rent by the defendant- tenants and the site plan (Ex.D1) further corroborates their case. 27. Thus, it would be seen that if the crux of the oral as well as documentary evidence as discussed hereinabove, is put together, then, to me, the R.S.A.No.2361 of 1987 alongwith 11 connected appeals -13- conclusion is inescapable and irresistible that it stands proved on record that earlier the District Board was the owner. It transferred the shops in dispute adjoining to the berms on Shahabad-Ladwa road to the MC and defendant -tenants were earlier paying the rent to the District Board till 31.3.1958. After the transfer of the land, they are regularly paying the rent to the MC. As plaintiff Mandir failed to substantiate its case, therefore, the trial Court appears to have rightly dismissed its suits, but the first appellate Court fell in legal error in accepting its claim, by misreading the entries in the jamabandi vis-a-vis the identity of the shops and ignored the material/relevant evidence on record, inculcating and perpetuating the manifest injustice to the case of the defendants. Therefore, the substantial questions of law are accordingly answered in their (defendants) favour. Hence, since the findings of the first appellate Court are absolutely illegal as discussed hereinabove, so, to my mind, the impugned judgment and decree cannot possibly be sustained in the eyes of law as such. 28. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the