RSA No. 4524 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 4524 of 2010 (O&M) Date of decision : 19.9.2011 ... Shiromani Gurdwara Parbandhak Committee, Teja Singh Samundari Hall, Amritsar through GPA ................Appellant vs. Municipal Corporation Amritsar .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. B.S. Sudan, Advocate for Dr. Puneet Kaur Sekhon, Advocate for the appellant. ... K.C. Puri, J. The defendant-appellant has challenged the judgment and decree dated 9.4.2010 passed by Sh. Sarbjit Singh Dhaliwal, Additional District Judge (Adhoc), Fast Track Court, Amritsar, vide which the appeal preferred by the defendant-appellant against the judgment and decree dated 2.6.2008 passed by Sh. Balwinder Kumar, Civil Judge (Junior Division), Amritsar, was dismissed. Briefly stated, the Municipal Corporation, Amritsar through its Commissioner filed suit for permanent injunction restraining the defendant from raising any sort of construction in the Municipal land situated in front of Gurdwara Santokhsar Sahib commonly known as Khoti Ahata, Town Hall, Amritsar, in any manner. RSA No. 4524 of 2010 -2- The case of the plaintiff is that it is a body corporate constituted under the Punjab Municipal Corporation Act, 1976 which is owner in possession of the suit land. Defendants No. 1 and 2 have attempted to encroach upon the site in dispute but that attempt was foiled with the timely action of the officials of the Municipal Corporation, Amritsar. Thereafter defendants No. 1 and 2 filed the suit for permanent injunction restraining the Municipal Corporation from raising any construction over the suit property in front of Gurdwara Santokhsar Sahib. The said suit was filed by SGPC which was dismissed by Sh. S.P. Sood, Civil Judge (Junior Division), Amritsar, vide judgment dated 21.7.2000 and the appeal preferred by SGPC was also dismissed. Defendant No.3 alongwith 200/300 anti social elements started raising illegal construction over the suit property at the behest of defendants No. 1 and 2. Staff of the plaintiff tried to stop them from doing such illegal activities by serving notice under Section 246-A of Punjab Municipal Corporation Act, 1976, but the defendants refused to adhere to the notice. Hence the suit. Notice of the suit was issued to the defendants, who appeared and filed written statement taking legal objections that plaintiff has no locus standi to file the suit and plaintiff is stopped by the act and conduct from filing the suit. It is further alleged that suit of the plaintiff is not maintainable and plaintiff has not come to the court with clean hands. On merits, it is denied that plaintiff is owner in possession of the property known as Khoti Ahata situated in front of Gurdwara Santokhsar, Town Hall, Amritsar. It is averred that earlier suit was filed with regard to some other land for which already RSA No. 4524 of 2010 -3- boundary wall was built by the plaintiff about 3 feet high and same is shown in the photographs. The suit land was adjoining to the building of Gurswara Shri Santokhsar Sahib in which the boundary wall of three feet in length has already been raised by the plaintiff and area covered is 839 Sq. Yards whereas as per the record area is 1 Kanal 18 ½ Marlas and thus plaintiff encroached area of path measuring 129 Sq. Yards. It is further alleged that the earlier suit was dismissed due to closure of evidence by order but no appeal was filed against the said order. It is further alleged that plaintiff under the garb of present government wants to interfere in the possession of the defendants. Replication to the written statement was filed denying the contents of the written statement and reiterating the stand taking in the plaint. From the pleadings of the parties, following issues were framed:- 1) Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 2) Whether the plaintiff has no locus standi to file the present suit? OPD 3) Whether the plaintiff is stopped by his act and conduct from filing the present suit as alleged in Preliminary Objection No.2? OPD. 4) Whether the plaintiff has not come to the Court with clean hands as alleged in preliminary objection No.3? OPD 5) Whether the suit is barred under Section 41(h) of Specific Relief Act? OPD RSA No. 4524 of 2010 -4- 6) Relief. Previously the suit was decreed on 8.9.2007 and the defendant preferred the appeal. Vide judgment dated 7.2.2008, the learned District Judge, Amritsar, remanded the case back giving directions to the plaintiff to file the site plan, which was ultimately placed on the file. The plaintiff examined PW-1 Surjit Singh and PW-2 Hans Raj and closed the evidence after tendering the site plan Exhibit PX. In rebuttal, defendants examined DW-1 Amrik Singh and DW-2 Manpreet Singh and closed the evidence. Learned trial Court after appraisal of the evidence, returned the finding on issue No.1 in favour of the plaintiff. Whereas issues No. 2, 3, 4 and 5 were decided against the defendants. In view of the finding on the issues, the suit of the plaintiff was decreed. Feeling dissatisfied with the above said judgment, the defendant-SGPC preferred the Ist Appeal. The Ist Appellant Court dismissed the said appeal vide judgment dated 9.4.2010. Feeling still dissatisfied with the judgment and decree dated 9.4.2010 passed by Sh. Sarbjit Singh Dhaliwal, Additional District Judge (Adhoc), Fast Track Court, Amritsar, and the judgment and decree dated 2.6.2008 passed by Sh. Balwinder Kumar, Civil Judge (Junior Division), Amritsar, the present regular second appeal has been filed by one of the defendants i.e. SGPC. The appellant in paragraph No. 4 of the grounds of appeal has mentioned that following substantial questions of law have arisen for consideration in the present appeal:- RSA No. 4524 of 2010 -5- i) Whether mere production of register regarding ownership of properties, without establishing connection of the entries in the register with the suit property is sufficient to prove ownership and possession over the suit property? ii)Whether the judgment and decree of the courts below is perverse? iii)Whether the appellant/defendant entitled to do the acts to secure the full enjoyment and preservation of the easementry rights? Learned counsel for the appellant has submitted that plaintiff has failed to prove the ownership in respect of the suit property. Otherwise also, the suit property is the passage and that cannot be obstructed by the Municipal Corporation. The judgments of both the Courts below are perverse. The appellant has secured the full right of enjoyment in respect of the suit property. So, the suit of the plaintiff should have been dismissed by the trial court. I have considered the submission made by counsel for the appellant and have also gone through the file of the case. The main stress of the arguments of the counsel for the appellant is that the suit property is the passage and right of easement has accrued in favour of the appellant, as well as, public. It has been further argued that suit property is other than the walled property of SGPC and as such no injunction can be granted. The suit property is in front of Gurdwara Sahib. The plaintiff earlier filed suit in respect of the suit property, which was dismissed and no appeal was preferred. Both the Courts below have given a categoric finding that RSA No. 4524 of 2010 -6- suit property vests in the Municipal Corporation and that being a finding of fact cannot be interfered into. The Municipal Corporation has no where stated that passage is being encroached. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 19.9.2011 Judge chugh