IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3526 of 2001 (O&M) Date of Decision : 16.3.2010 Smt. Chanderpati (dead) through LRs ....Appellant Versus Municipal Council, Kaithal ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Madan Pal, Advocate for the appellant. Mr.Sanjay Chauhan, Advocate for the respondent. ..... MAHESH GROVER, J. Originally the suit was filed by Smt. Chanderpati and after her death the appeal has been prosecuted by her legal representatives. The suit was filed by the plaintiff with the plea that she was owner in possession of the suit property and that the respondents were alleging the same to be their land and were seeking to oust her from the suit property. The learned trial Court decreed the suit whereas the first Appellate Court decided the matter against the appellants. In Regular Second Appeal during the course of proceedings on 10.9.2008 this Court passed the following order :- “As per the assertion of the counsel for the appellant, the appellant is shown to be in possession of the R.S.A.No.3526 of 2001 (O&M) -2- area as per the site plan which was sanctioned by the Municipal Authorities vide order dated 5.2.1987 Exs.P-3 and P-4. However, this contention of the counsel for the appellant has vehemently been contested by the counsel for the respondent by stating that the area which the appellant has shown herself to be in possession is in fact the area of the town wall which has been encroached upon by her. Adjourned to 8.12.2008. Let the Tehsildar, Kaithal visit the site and demarcate the site in dispute as per the site plan sanctioned by the Municipal Authorities in favour of the appellant vide order dated 5.2.1987. The report be submitted to this Court within six weeks from today. Let a copy of this order be sent to the Tehsildar, Kaithal. The Tehsildar shall visit the site after giving due notice to the parties.” Consequent thereto the Local Commissioner inspected the site and concluded that the land does not belong to the respondents and that there is no encroachment thereon thereby falsifying the claim of the respondents. The suit property was found to be within the Lal Dora and in the Abadi Deh of the village. The report is to the satisfaction of both the parties. Since no encroachment has been found and the land R.S.A.No.3526 of 2001 (O&M) -3- concededly has not been found to be that of the respondents, the findings recorded by the first Appellate Court on this issue are reversed. The question of law that arises for the consideration of this Court is “whether the respondents could have resorted to the provisions of Haryana Municipal Act to seek the eviction of the appellants when the suit property is not falling within the municipal area?” Since the report of the Local Commissioner conclusively establishes that the land does not fall within the municipality and is within the Abadi Deh, I am of the opinion that the Municipal Committee, Kaithal had no authority to resort to the provisions of the Municipal Act and to seek the ouster of the appellants. In any eventuality, neither the land has been found to be that of the Municipal Committee nor any encroachment has been found to have been made, consequently the findings of the first Appellate Court are held to be erroneous and are reversed. Resultantly, the appeal is allowed. 16.3.2010 (MAHESH GROVER) JUDGE dss