RSA No.919 of 1983 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.919 of 1983 Date of decision : 03.03.2011 Municipal Corporation, Jalandhar …..Appellant Versus Jawala Singh …..Respondent And RSA No.956 of 1983 Municipal Corporation, Jalandhar …..Appellant Versus Ajit Singh …..Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present : Shri APS Sandhu, Advocate, for Shri Mukul Aggarwal, Advocate, for the appellants. Shri SS Narula and Shri Sanjiv Sharma, Advocates, for the respondents. JITENDERA CHAUHAN, J. 1. Through this single judgment, this court is going to dispose of two regular second appeal Nos.919 and 956 of 1983. RSA No.919 of 1983 2 2. This regular second appeal No.919 of 1983 is preferred by the Municipal Corporation, Jalandhar, against the judgment and decree dated 02.11.1982 dismissing the appeal of the appellant against the judgment and decree dated 31.07.1981 passed by the learned Sub Judge (I Class), Jalandhar, whereby the suit of Jawala Singh plaintiff (respondent herein ) was decreed for permanent injunction restraining the defendant from interfering in the possession of the plaintiff in property No.615, Bhargo Camp, Jalandhar from forcibly removing the structure. 3. Jawala Singh filed the civil suit No. 9 on 6.2.1979 for permanent injunction restraining the defendant from interfering in the lawful possession of the plaintiff in property No.615, Bhargav Camp, Jalandhar, and forcibly removing the structure on the area. The pleadings in the suit are that the plaintiff is a displaced person and on migration to India got himself accommodated in the Bhargav Camp, Jalandhar, which was specifically meant for rehabilitation of displaced persons. Since then he has been in occupation of the area constructed by him. The Deputy Secretary (R) issued DO No.3518/LSH dated 2.2.1978 to the defendant requested the Corporation not to interfere in the area and disturb the possession of the plaintiff and other occupants of the area. The defendant issued notice under sec.246 of the Punjab Municipal Corporation Act to the plaintiff and tried to dispossess the plaintiff but were dissuaded on account of resistance from the public. The plaintiff challenged the action of the defendant on the following grounds:- RSA No.919 of 1983 3 (a) The site in dispute is not a public street and does not vest in the Municipal Corporation-defendant. (b) The construction had been made and completed in early fifties and had been existing there since then. At the time of the construction, this area was beyond the municipal limits of the defendant and no permission was required to make construction thereon. (c) The Municipal Committee, the predecessor of the Municipal Corporation Jalandhar never objected to the existence of such structure and no fresh cause for removal of the structure was made out. (d)No action under the provisions of section 246 of the Act can be taken being in applicable. 4. The Municipal Corporation-defendant contested the suit of the plaintiff taking preliminary objections that the suit property is a part of the public street meant for dust bins; the suit is barred under sec.396 of the Act as no prior notice has been issued or served upon the defendant; the suit is time barred and the plaintiff has constructed the public street meant for Dustbins by constructing a cattle shed measuring 20’ x 25’. It is further pleaded that Bhargo Camp was a mud hut colony within the municipal limits and it was transferred to the Municipal Committee, Jalandhar in the year 1963 and thus the streets, open sites, parks etc. vests in the defendant, which has been maintaining them since then. 5. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has been in possession of the suit land for the last more than 25 years? OPP RSA No.919 of 1983 4 2. Whether the suit land is a part of the public street and the Municipal Corporation is authorised to get it vacated under the provisions of the Pb.M.C. Act, 1976? OPD 3. If issue no.2 is proved whether the notice issued to the plaintiff is invalid, illegal ultravires and without jurisdiction as put in para no.5 of the plaint? OPP 4. Whether the civil court has no jurisdiction? OPD 5. Whether the plaintiff is entitled to the injunction prayed for. 6. Relief. 6. The learned trial court decided issue no.1 in favour of the plaintiff; issues No.2, 4 and 5 were decided against the defendant; and keeping in view the findings on issue No.2, issue No.3 was left undetermined. The learned trial court decreed the suit of the plaintiff as prayed, on 31.7.1981. 7. The Corporation challenged the judgment and decrees dated 31.7.1981 of the trial court in the lower appellate court, in Civil appeal No.287 of 1981, which was dismissed with costs, on 02.11.1982. 8. The Jalandhar Municipal Corporation came up in this regular second appeal No.919 of 1983 challenging the judgments and decrees of both the courts below. 9. Another person, Ajit Singh son of Ram Singh, also filed a civil suit No.8 of 1979 for permanent injunction against the Municipal Corporation, Jalandhar, from interfering in the lawful possession of the RSA No.919 of 1983 5 plaintiff in property no.616, Bhargav Camp, Jalandhar including an area of cattle shed, measuring 20’ x 25’, and restraining the defendant Corporation from forcible removing the structure on the site. The pleading of the parties and the evidence led by the parties in civil suit no.8 and 9 of 1979 were common. Both the civil suits were decreed on similar reasoning. The Corporation preferred two appeals no.287 of 1981 and 288 of 1981 before the lower Appellate Court, which were dismissed vide single judgment dated 02.11.1982 delivered in civil appeal no.287 of 1981 captioned as ‘Jalandhar Municipal Corporation vs Jawala Singh’. Against these judgments and decrees, the Corporation has again came up in regular second appeals no.919 and 956 of 1983 in this court, which are being disposed of by this judgment as the identical facts are involved in both these appeals. 10. During the pendency of this regular second appeal, the respondent, Jawala Singh expired on 30.1.2002. His wife also expired on 14.11.2002. Mohinder Singh, Gurcharan Singh, Harjit Singh sons; Amarjit Kaur and Surjit Kaur daughters of respondent Jawala Singh, deceased, were brought on record. 11. In these appeals, the Joint Commissioner, Municipal Corporation, Jalandhar furnished affidavits depicting the factual position at the site, wherein it has been stated that the site is reserved as dustbin area abutting the public street. At present, there are double- storey pucca houses raised at the site by the plaintiffs Ajit Singh and Jawala Singh. RSA No.919 of 1983 6 12. Learned counsel for the appellants argued that there is no documentary evidence on record that the plaintiffs are in possession of the site for the last more than 25 years; there are documents Ex.DW2 and Ex.DW2/2 which are part of the official record and presumption of truth is attached to it; the courts below have wrongly relied upon letter Ex.PW4/2 dated 16.6.1981 and that the site in dispute is a street. The learned counsel for the appellants further argued that judgments of both the courts below are against law and facts on the file. 13. On the other hand, the learned counsel for the respondents plaintiffs submits that there is concurrent finding of fact arrived at by both the courts below on rightly appreciating the entire record. There is no law point involved in this case. He cites Municipal Corporation of Ludhiana vs Kamlesh Jindal, 1992(1) Recent Revenue Reports 115; and Muthu Gounder Vs. Ammayee Ammal, 2002(3) RCR (Civil) 559; wherein, it has been held that regular second appeal is maintainable only if there is any substantial question of law. He submits that there is no substantial question of law to be determined by this Court. 14. I have heard the learned counsel for the parties and with their able assistance have gone through the lower court record. 15. The point for determination is as to whether the judgments of both the Courts below in both the appeal are perverse ? 16. There is statement of Ram Lal, Kanungo, Rehabilitation Department, Jalandhar, PW4, to the effect that the property in dispute vested in the Rehabilitation Department and not the Municipal RSA No.919 of 1983 7 Corporation and further that all vacant spaces in Bargav Camp, Jalandhar, belonged to the Rehabilitation Department. He also proved on record letters addressed to the Municipal Corporation by the Rehabilitation Department dated 02.02.1978 and 16.06.1971, Ex.PW- 4/A and Ex.PW-4/2, respectively. Vide letter No.9225-32/LA, Ex.PW- 2 dated 16.06.1971, the Rehabilitation Department had specifically written to the Deputy Commissioner Jalandhar, regarding control of the Municipal Committees over various Rehabilitation Colonies having being withdrawn. Further, there is nothing on record to show that the open spaces meant for public parks etc. were ever transferred to the Municipal Corporation. So, it cannot be said that the disputed site vested in the appellant-corporation. The appellant has failed to establish its ownership over the site in dispute in both the civil suits and therefore, both the suits were rightly decreed. Mere filing of affidavits of Joint Commissioner, the appellant in these regular second appeals will not be able to improve the case of the appellants as it is not supported by any documentary evidence. 17. There is no substantial question of law that has been raised by the appellant. In regular second appeal, it is to be seen that findings of the Courts below is perverse, which has not been shown in these appeals. 18. No interference is called for in the well-reasoned judgments of both the Courts below. 19. For the reasons stated above, RSA Nos.919 and 956 of 1983 fail and are dismissed. RSA No.919 of 1983 8 ( JITENDRA CHAUHAN ) 03.03.2011 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No