R. S. A. No. 1456 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1456 of 2011 Date of Decision : April 06, 2011 Kanshi Ram .... Appellant Vs. Data Ram and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Preetinder Singh Dhaliwal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 Kanshi Ram having been successful in the trial court, but having been unsuccessful in the lower appellate court, has filed the instant second appeal. Respondents no.1 and 2/plaintiffs Data Ram and Dal Chand filed suit against defendant no.1/appellant and against Municipal Council, Ambala Sadar (proforma respondent no.3/defendant no.2) alleging that the suit land is a public place left by defendant no.2-Municipal Committee for use of General Public and residents of the locality, but defendant no.1 has encroached upon the said land by raising pucca construction in the shape of house. Defendant no.2 initiated eviction proceedings under the Haryana R. S. A. No. 1456 of 2011 2 Premises Land Eviction and Rent Recovery Act, 1972 (in short – the Act) against defendant no.1 and against several other persons, who had encroached upon the public land. Collector passed eviction order dated 29.06.1988 against defendant no.1 and other occupiers of public land and also directed them to pay damages. However, defendant no.1 has not vacated the suit land nor defendant no.2 has removed the construction of defendant no.1 therefrom. Accordingly, plaintiffs sought mandatory injunction directing the defendants to remove/demolish the structure/house constructed by defendant no.1 over the public place in front of houses of the plaintiffs. Defendant no.1 admitted the factual position pleaded by the plaintiffs. However, defendant no.1 alleged that on representation made by defendant no.1 and other similar persons, who had constructed building on the Government land, the Government did not execute the ejectment order. It was admitted that the suit land is Government land and Municipal Committee is owner thereof. Defendant no.1 also claimed to have become owner of the suit land by adverse possession. It was also pleaded that plaintiffs were also unauthorized occupants of public land, but the same has been allotted to them by Government. Defendant no.2 also did not controvert the factual position. Defendant no.2 alleged that it would take action in accordance with provisions of the Haryana Municipal Act, if any encroachment would be made on Government land. R. S. A. No. 1456 of 2011 3 Learned Civil Judge (Junior Division), Ambala Cantt., vide judgment and decree dated 25.07.2009, dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned District Judge, Ambala, vide judgment and decree dated 07.03.2011 and thereby, suit filed by the plaintiffs stands decreed. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the suit land has been allotted to defendant no.1 by defendant no.2, as conceded by counsel for defendant no.2 before the lower appellate court, as mentioned in paragraph 14 of the judgment of the lower appellate court. The contention is completely misconceived and meritless. There is no pleading either by defendant no.1 or by defendant no.2 that the suit land was allotted by defendant no.2 to defendant no.1. There is also not even an iota of evidence led by the defendants to substantiate the aforesaid contention. Consequently, the contention being completely beyond pleadings and evidence, cannot be accepted. In fact, the contention is contrary to the pleading of defendant no.1 himself. Defendant no.1 admitted in the written statement itself that this is Government land and now, Municipal Committee is owner thereof. Consequently, defendant no.1 has no right to retain his house over the suit land. Suit land lies in front of the houses of the plaintiffs. Obviously, they are facing inconvenience on R. S. A. No. 1456 of 2011 4 account of unauthorized occupation of public land by defendant no.1. From the contention raised by counsel for defendant no.1-appellant, it appears that defendant no.2 is in connivance and collusion with defendant no.1, as was rightly pleaded by the plaintiffs. Counsel for defendant no.2 went to the extent of stating before the lower appellate court that the public land had been allotted to the occupants. However, this stand of counsel for defendant no.2 before the lower appellate court is completely contradictory to pleadings of both the defendants and is not substantiated by any evidence. Lower appellate court has observed in detail every aspect of the case and has dealt with all the contentions raised on behalf of the defendants. Finding of the lower appellate court does not warrant interference in second appeal. In fact, in view of admitted facts, defendant no.1-appellant cannot succeed because admittedly, suit land is public land and therefore, defendant no.1 has no right to continue to occupy the same. Defendant no.1 also cannot be said to have become owner of the suit land by adverse possession because it is public land meant for use by the public. For the reasons aforesaid, I do not find any merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. April 06, 2011 ( L. N. MITTAL ) monika JUDGE