RSA No.2517 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2517 of 2011 (O&M) Date of decision 5.8.2011. Mahesh Chand ...... Appellant. versus Municipal Corporation, Faridabad and another ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI m Present : Mr. Lokesh Sinhal, Advocate for the appellant. K.C.PURI. J. The challenge in this appeal is the judgment and decree dated 26.4.2011 passed by Smt. Anshu Shukla, Additional District Judge, Faridabad, vide which the appeal against the judgment and decree dated 21.1.2011 passed by Mrs. Bhawna Jain, Additional Civil Judge (Senior Division), Faridabad was dismissed. 2. Mahesh Chand plaintiff has filed a suit seeking the relief of declaration to the effect that he is owner in possession of shop bearing No.6/347 measuring 64.66 square yards as detailed in para No.1 of the trial Court judgment situated in the main Bazar, Anaj Mandi, Faridabad City Tehsil and District Faridabad shown with letters ABCD in red colour in the site plan along with construction raised thereon. It is pleaded that the suit RSA No.2517 of 2011 2 property was purchased by him vide sale deed No.9218 dated 20.9.1988. The land of defendant was laying vacant in front of the shop in question which was given on Tehbazari to his father and grandfather. The tin shed construction was raised in front of the shop of the plaintiff which was removed. Now the defendants have issued a show cause notice to the plaintiff to vacate the aforesaid land without getting the property demarcated and have alleged that the shop of the plaintiff is also an unauthorised construction/extension to some extent. The plaintiff filed writ petition No.5433 of 2003. However, the same was dismissed. 3. On put to notice, the defendants filed written statement raising legal objections of locus standi, cause of action, maintainability, concealment of true facts etc. It is alleged that under the garb of the suit plaintiff wants to encroach upon the land of the Municipal Corporation, Faridabad. Previously some land was given on Tehbazari but that has been got vacated. However, the plaintiff has permanently extended the construction of the shop illegally and without the permission of the Municipal Corporation, Faridabad and the suit is liable to be dismissed. 4. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is entitled for a decree for declaration, as prayed for ?OPP 2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ?OPP 3. Whether the suit is not maintainable in the present form ?OPD 4. Whether the present suit is barred under the principles of res judicata ?OPD RSA No.2517 of 2011 3 5. Relief. To prove his case, plaintiff examined Balwant Singh Record Keeper Faridabad as PW-1, Rakesh Chand, ARC, Sub Registrar Office as PW-2, Amar Singh as (PW-3), Tek Chand Sharma as PW-4, Parveen Garg (PW-5) and plaintiff himself appeared as (PW-6) and closed his evidence after tendering certain documents into evidence. 5. In rebuttal, defendant examined Khazan Singh House Tax Inspector (DW-1) and closed the evidence after tendering certain documents into evidence. 6. The learned trial Court after appraisal of the evidence dismissed the suit of the plaintiff vide judgment and decree dated 21.1.2011. 7. Feeling dissatisfied with the above said judgment and decree, the plaintiff has preferred First Appeal and the same was also dismissed vide judgment and decree dated 26.4.2011 passed by Smt. Anshu Shukla, Additional District Judge, Fariadbad. 8. Feeling dissatisfied with the above said judgments and decrees, dated 21.1.2011 and dated 26.4.2011, plaintiff has filed the present second appeal. 9. The appellant in paragraph No.8 of the grounds of appeal has mentioned that following substantial questions of law have arisen :- i) Whether the plaintiff is entitled to the injunction with regard to property which is admittedly owned by him? ii) Whether the learned courts below have misread the evidence lead by the parties ? iii) Whether the findings recorded by the courts below are RSA No.2517 of 2011 4 based upon the grounds which are even beyond the pleadings ? iv) Whether the findings recorded by the courts below are perverse ? 10. Learned counsel for the appellant has submitted that both the Courts below have misread and misinterpreted the evidence on the file. The case of the plaintiff is that he is owner in possession of the suit property. The Local Commissioner was appointed, who has clearly reported that plaintiff is in possession of the property purchased by him. Mere fact that poles were there in some portion in front of the shop of the plaintiff do not prove his possession. So, prayer has been made for reversal of both the judgments and decrees passed by the Courts below and decree the suit of the plaintiff. 11. I have given my thoughtful consideration to the submission made by the learned counsel for the appellant and have gone through the case file. 12. The controversy raised by the plaintiff is in respect of the shop. Admittedly, earlier some portion in front of the shop was on Tehbazari, which has been got vacated. The case of the defendant from the very beginning is that the plaintiff under the garb of the present suit wanted the injunction in respect of the encroachments. The Local Commissioner was appointed at the instance of the plaintiff. He has given a report that poles are still lying in front of the shop of the plaintiff. The stand taken by the defendant is substantiated on the file that plaintiff under the garb of injunction wanted to encroach upon the land of the Municipal Corporation, Faridabad. It is settled law that if the plaintiff has ulterior motive and has RSA No.2517 of 2011 5 not come to the Court with clean hands, in that case he is not entitled to any relief from the Court. There is nothing on the file that judgment of both the courts below are perverse. There is nothing on the file to show that both the Courts below have misread and misinterpreted the evidence on the file. The findings that plaintiff wanted to encroach upon the land of the Municipal Corporation, Farbadbad recorded by both the Courts below is a concurrent finding of fact which cannot be assailed in the regular second appeal. There is nothing on the file to show that the both the judgments and decrees are perverse. 13. So, the substantial questions of law raised by the learned counsel for the appellant stand answered against the appellant to the extent referred to above. 14. Consequently, there is no merit in the appeal and the same stands dismissed. 15. In view of the above discussion, the appeal is without any merit and the same stands dismissed 16. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 5th , 2011 sv