IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2501 of 2011 (O&M) Date of Decision: 31 st May, 2011 Ludhiana Improvement Trust, Ludhiana ….Appellant Versus Rakesh Goyal & others ….Respondents CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT: Mr. Arvind Mittal, Advocate for the appellant. * * * * * L. N. Mittal, J. (Oral) CM No.6844-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 65 days in refilling the appeal is condoned. CM No.6845-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 67 days in filing the appeal is condoned. Main Appeal Defendant-Ludhiana Improvement Trust having been unsuccessful in both the courts below has filed the instant second appeal. Facts in this case are not very much in dispute. Plot of Prem Prakash Goyal was acquired by the defendant for its scheme. Plaintiffs are RSA No.2501 of 2011 (O&M) legal heirs of Prem Parkash Goyal since deceased being his three sons, wife and mother. The deceased applied to the defendant for allotment of plot being local displaced person and also deposited Rs.500/- with application with the defendant. However, the deceased was informed by the defendant that the case was being processed. Ultimately since the plot was not allotted, plaintiffs filed suit seeking declaration that they are entitled to allotment of plot and also sought consequential relief of permanent injunction. The defendant admitted that plot of Prem Prakash Goyal was acquired by the defendant. However, other averments of the plaintiffs were controverted. It was alleged that plaintiffs are not entitled to any plot. Various other pleas were also raised. Learned Additional Civil Judge, (Senior Division), Ludhiana vide judgment and decree dated 24.11.2009 decreed the plaintiff’s suit. First appeal preferred by defendant has been dismissed by learned District Judge, Ludhiana vide judgment and decree dated 17.08.2010. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. As already noticed, it is undisputed that plot of plaintiffs’ predecessor Prem Prakash Goyal was acquired by the defendant. Consequently, Prem Prakash Goyal was local displaced person and was, therefore, entitled to allotment of plot as such. There was, therefore, no justification for the defendant for having not allotted a plot to the plaintiffs -2- RSA No.2501 of 2011 (O&M) or their predecessor. The suit of the plaintiffs has, therefore, been rightly decreed by the courts below. Learned counsel for the appellant contended that no notice as required by Section 98 of the Punjab Town Improvement Act, 1922 (in short the Act), was served on the defendant before filing the suit. The contention cannot be accepted. Plaintiff No.1 Rakesh Goyal as PW-1 has stated that the plaintiffs had served requisite notice on the defendant before filing the suit. He also produced copy of the said notice mark B along with postal receipt Exhibit P-6. Said evidence of the plaintiffs stands completely unrebutted. The defendant examined Amarjit Singh DW-1. However, he did not appear for cross-examination and, therefore, his examination-in- chief cannot be taken into consideration. Adverse presumption, therefore, arises against the defendant for not producing any evidence. Postal receipt Exhibit P-6 is sufficient to prove that requisite notice was served on the defendant. It is not the case of the defendant that by the said postal receipt, plaintiffs had sent some other document and not the requisite notice. Defendant has also not produced the document, which was sent to it vide postal receipt Exhibit P-6. It is thus manifest that plaintiffs had served requisite notice on the defendant before filing the suit. It was contended by counsel for the appellant that the plaintiffs have produced only Photostat copy of the notice, which cannot be admitted in evidence. The contention cannot be accepted because the original notice is in the custody of the defendant-appellant itself and, therefore, plaintiffs had no alternative but to produce copy of the same. Moreover, service of notice is proved in view of postal receipt Exhibit P-6. -3- RSA No.2501 of 2011 (O&M) Learned counsel for the appellant next contended that plaintiffs have simply sought declaration and permanent injunction but have not sought the further relief of mandatory injunction to direct the defendant to allot the plot to the plaintiffs and therefore, suit for declaration and permanent injunction only, without further relief of mandatory injunction, is not maintainable in view of proviso to Section 34 of the Specific Relief Act, 1963. The contention although apparently attractive cannot be accepted, because the plaintiffs inter alia sought declaration that they are entitled to allotment of one plot as per their entitlement. The plaintiffs also sought permanent injunction restraining defendant from making allotment of plots in its schemes without first allotting one plot to the plaintiffs in the said schemes. This relief would include the relief of allotment of one plot to the plaintiffs before allotting any plot to anybody else. The plaintiffs thus claimed first allotment of the plot to them and, therefore, it cannot be said that they have not sought the requisite relief of allotment of the plot. It may be added that pleadings in Sub-Divisional or District Courts have to be construed liberally and not in a narrow sense. Consequently, the aforesaid contention raised by the counsel for the appellant cannot be accepted because the plaintiffs have sought the requisite relief and the suit is not barred by proviso to Section 34 of Specific Relief Act, 1963. Learned counsel for the appellant also contended that plaintiffs’ predecessor vide letter Exhibit P-5 demanded back the amount of Rs.500/- deposited by him with the defendant and, therefore, plaintiffs are not entitled to allotment of plot. The contention is again devoid of substance. Firstly, the contention is beyond pleadings. No such plea was raised in the written statement. Secondly it is not the case of the defendant -4- RSA No.2501 of 2011 (O&M) that the amount of Rs.500/- deposited by plaintiffs’ predecessor with the defendant was refunded to him nor there is any evidence on record to this effect. Consequently plaintiffs cannot be held disentitled to allotment of plot on this ground. For the reasons aforesaid, I find no merit in the instant second appeal. Suit filed by the plaintiffs has been rightly decreed by the courts below. Defendant resisted the claim of the plaintiffs without any basis. There is no illegality or perversity in the judgments of the courts below in decreeing the suit of the plaintiffs, nor concurrent finding recorded by the courts below is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. This appeal does not raise any question of law, much less substantial question of law, for determination. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 31st May, 2011 ‘raj’ -5-