RSA No.2009 of 2010 [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2009 of 2010 Date of decision: August 18, 2011. Improvement Trust, Sonepat ... Appellant(s) v. Suresh Kumar ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Jai Bhagwan Sharma, Advocate, for the appellant(s). Shri Mrigank Sharma, Advocate, for the respondent(s). Kanwaljit Singh Ahluwalia , J. (Oral): Present regular second appeal has been preferred by defendant to the suit, i.e., the Improvement Trust, Sonepat. The dispute in the present case revolves around 6'x6' platform which is built in front of the shop allotted/purchased by the plaintiff-respondent to the suit. It is also not disputed that for more than two decades, the platform in front of the shop is being used by the plaintiff/respondent-allottee/owner of the shop. Shri Jai Bhagwan Sharma, counsel appearing for the Improvement Trust, Sonepat has stated that an offer has been made to the plaintiff/shop holder to pay Rs.16,400/- as cost of the platform of 6'x6' in front of the shop and in case such a payment is made, the ownership of the platform shall be transferred in the name of the owner/allottee of the shop. To determine the very fair offer made by the Trust, it will be necessary to notice the brief facts of the case: Suresh Kumar plaintiff-respondent had filed a suit for RSA No.2009 of 2010 [2] declaration that he is owner in possession of 6'x6' platform in front of shop No.15 and, therefore, consequential relief of permanent injunction be granted and the appellant-defendant Improvement Trust be restrained from interfering into the ownership and possession of the platform and furthermore, defendant be restrained from effecting illegal recovery from the plaintiff. In the suit, it was pleaded that shop No.15 in Scheme No.3 in New Sabji Mandi, Sonepat was allotted to one Jawahar Lal in the year 1980. The size of the shop was 6' x 9'. This shop was subsequently purchased by the plaintiff. It was stated that a platform in front of the shop measuring 6' x 6' was a part of the shop. It was further stated that on 26.9.2002, the Improvement Trust had issued a notice calling upon the plaintiff to deposit Rs.16,400/- and had threatened the plaintiff that in case the amount is not paid, they shall evict him from the platform (6' x 6'). Upon issuance of the notice, defendant – Improvement Trust, Sonepat caused appearance and filed a written statement. They admitted that shop No.15 was allotted to Jawahar Lal with the dimension of 6' x 9'.They further stated that the shop was originally allotted to one Neb Raj in the year 1973 and thereafter it was transferred in the name of Jawahar Lal in the year 1980. However, they denied the fact that the platform measuring 6' x 6' is a part of the shop. It was stated that this platform is reserved for Masha Khore (vegetable vendors) and from this platform, only vegetables could be sold. In para 4 of the written statement, it was averred as under:- “4. That para No.4 of the plaint as stated is wrong and hence denied. The allegations levelled against the answering defendant are totally wrong and false. Infact the plaintiff has wrongly and illegally encroached upon the area of 6x6 feet pertaining to platform which was left in front of the shop for the use of Platform for the use of Masha Khor/Veg. Vendors RSA No.2009 of 2010 [3] only and said land is owned by the defendant. The answering defendant has every legal right to get the said land vacated from the plaintiff. It is further submitted that the answering defendant also facilitated the plaintiff to pay the cost of the said Platform i.e. Rs.16,400/-. It is wrong to allege that the said platform is owned by the plaintiff, rather he is in illegal possession of the same and is liable either to pay the cost of same or to vacate the same.” Replication to the written statement was filed in which the averments made in the plaint were reiterated whereas those made in the written statement were denied. After conclusion of the pleadings, the trial court had formulated the following issues:- 1. Whether the plaintiff is owner in possession of the platform measuring 6' x 6'? OPP. 2. Whether notice dt. 26.09.02 is illegal, null, void and not binding on the rights of the plaintiff? OPP 3. Whether the plaintiff is entitled for injunction as prayed for? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the plaintiff has no cause of action and no locus standi to file the present suit?OPD 6. Whether the plaintiff has approached the court with clean hands? OPD 7. Whether the defendant is entitled to special costs under Section 35-A CPC? OPD 8. Whether the suit of the plaintiff is bad for want of prior legal notice as alleged? 9. Relief. The trial court relied upon agreement Ex.D2 and held that in the same, the dimension of the shop has been given as 6' x 9' and there is no RSA No.2009 of 2010 [4] mention of the fact that platform measuring 6' x 6' in front of the shop has also been sold to the plaintiff. It will be apposite here to reproduce the following findings returned by the trial court:- “11. ....If we take a look on the agreements Ex.D-2, it transpires that Improvement Trust entered into agreement with with earlier owner Sh.Jawaharlal son of Sh.Nebh Raj regarding Masha khore plot no.15 under Scheme No.3 at New Subzi Mandi, Sonipat and under Clause-1, the plot has been shown to be measuring 6' x 9' and there is no mentioning of the fact that the platform measuring 6' x 6' was also being sold to the plaintiff. Under these circumstances, when the platform 6'x6' has not been mentioned in the agreement Ex.D-2, the plaintiff can not claim to be owner of the platform.” In view of the above, the trial court concluded that the plaintiff cannot be held to have become owner of platform 6' x 6' and therefore, issue No.1 was decided against the plaintiff. On issues No.2 and 3, the trial court held that since for more than two decades, the platform is used by the shop- keepers, the Improvement Trust cannot interfere into their possession forcibly except in due course of law. However, the trial court also held that the defendant-Improvement Trust has no right to issue notice dated 26.9.2002 calling upon the plaintiff to deposit an amount of Rs.16,400/-. Thus, issues No.2 and 3 were decided in favour of the plaintiff. Issues No.4 to 8 were decided against the defendant. The trial court after returning the above said findings on the issues formulated, had partly decreed the suit. It held that the plaintiff is not owner of the disputed platform but had granted permanent injunction to the plaintiff restraining the defendant from interfering in possession of the plaintiff. The findings returned by the trial Court have been affirmed by the lower Appellate Court. RSA No.2009 of 2010 [5] Shri Jai Bhagwan Sharma, counsel for the appellant, has stated that the following substantial question of law arises for consideration of this Court:- “Whether the Improvement Trust was well within its right to demand Rs.16,400/- towards cost of platform 6'x6' which has been encroached by the shop-keeper?” It will be apposite here to reproduce translation of notice Ex.D1 produced by counsel for the appellant:- “From: Chairman, Improvement Trust, Sonepat To: _______________ Ref: No.________________ dated 26.9.2002 Sub:- Regarding allotment of vacant space in front of shops made by Improvement Trust under Scheme No.3. In reference to the above said, it is notified that this office had carved out 4 square yard plots for allotment for Mashakhore which has been encroached by you. In this context, it is stated that a request was received from you that you are ready to pay the appropriate cost. The request received from you was considered by the Improvement Trust and the Government and thereupon a decision has been taken that if a payment of Rs.4100/- per square yard is made, total of which comes to Rs.16,400/-, the same can be allotted to you. You are requested to deposit Rs.16,400/- within 15 days along with receipt otherwise legal action shall be taken against you.” According to Shri Jai Bhagwan Sharma, counsel for the appellant, notice, true translation of which has been reproduced above, was RSA No.2009 of 2010 [6] served upon all the shopkeepers. Counsel states that the trial court has committed a grave error by permitting the encroachers to use and occupy the platform 6' x 6' which was meant for vegetable vendors, without making any payment. Counsel for the Improvement Trust has submitted that till now also to facilitate the shopkeepers to use and occupy the platform, Improvement Trust is ready to allot the same in case cost of Rs.16,400/- is paid. Shri Mrigank Sharma, counsel appearing for the plaintiff- respondent/shopkeeper, has stated that platform in front of shop is a part of the allotment letter. However, in course of arguments, he has failed to show any document from which inference in support of the argument advanced by the counsel could be drawn. Therefore, the findings returned by the courts below that the notice Ex.D1, whereby shopkeepers were asked to pay the cost of Rs.16,400/- for the allotment of the platform is illegal and bad are set aside. Therefore, the relief granted by both the courts below is modified to the extent that in case shopkeepers/allottees/purchasers pay the cost of Rs.16,400/- within three months from the date of receipt of a certified copy of this judgment, the Improvement Trust may allot the same to the shopkeepers in consonance with the statement made by counsel for the appellant and notice Ex.D1. However, in case the amount is not paid, the Improvement Trust may, as held by the courts below, take necessary steps to evict the shopkeepers from the platform by following due process of law. The instant appeal stands disposed of with the above observations. [Kanwaljit Singh Ahluwalia] August 18, 2011. Judge kadyan/RC