Banwari Lal vs Municipal Committee, Narnaul

J.V. Gupta, J.—This is plaintiffs'' Second Appeal whose suit for injunction was decreed by the trial Court but dismissed in appeal.

Municipal Committee, Narnaul, issued notice dated 15th July, 1975 (Ex. P.1) under section 180 of the Haryana Municipal Act, 1973, asking the plaintiffs Banwari Lal, etc., to remove the encroachment or to furnish his defence by appearing on 21st July, 1975. Another notice dated 16th July, 1975 (Ex. P.2) was issued by the Municipal Committee to remove the gate installed by the plaintiffs in the Norah of the courtyard and mentioning therein that they had encroached upon the passage leading to Dharamshala Siri Kishan Rai. The plaintiffs filed the present suit for injunction restraining the defendant Municipal Committee from removing the alleged encroachment and it was averred in the plaint that they were ownersinpossession of the site in dispute which was their courtyard and that they had installed a gate and constructed a wall thereon as it belonged to them and was not a thoroughfare. In the written statement, the Municipal Committee controverted the said averments and pleaded that the property in dispute was not a courtyard in the house of the plaintiffs but was a thoroughfare leading to the well of Dharamshala and that the same vested trial the Municipal Committee, and as such, the plaintiffs had no locus standi to file the present suit. The trial Court after discussing the entire evidence, oral as well as documentary, came to the conclusion that the plaintiffs were ownersinpossession of the courtyard in dispute which is a private property, and that the same not being a part of the `street'' as defined in the Haryana Municipal Act, 1973 does not vest in the Municipal Committee, Narnaul. In view of that finding, the suit was decreed. In appeal, the learned Additional District Judge reversed the said findings of the trial Court and came to the conclusion that the site in dispute was a passage in existence since 1852 and was being used as such; the same being not owned by the plaintiffs and not a courtyard of the house and the Municipal Committee had the right to issue the notice to them to remove the encroachment, etc., because it came within the definition of `street'' as per section 2(23) of the Act. In view of that finding, the suit was dismissed. Dissatisfied with the same, the plaintiff has filed this Second Appeal in this Court.

Learned counsel for the appellants/plaintiffs contended that nowhere in the notices P.1 and P.2, the Municipal Committee had claimed the site in dispute to be a street and, therefore, the notices issued were illegal on this ground alone. It was further contended that the trial Court after considering the oral as well as documentary evidence had rightly come to the conclusion that the site in dispute was a courtyard belonging to the plaintiffs but the said finding has been reversed in appeal arbitrarily and on surmises and conjectures. According to the learned counsel, the most relevant documentary evidence which was relied upon by the trial Court has not been discussed by the learned Additional District Judge, and that being so, the finding arrived at is vitiated. On the other hand, the learned counsel for the defendant Municipal Committee submitted that the site in dispute was a `street'' as defined by section 2(23) of the Haryana Municipal Act, and therefore, for the plaintiffs to prove that the site in dispute belonged to them and they purchased the same from its earlier owners. According to the learned counsel, as a matter of fact, it was a passage between the two houses and the plaintiffs after purchasing the two houses tried to encroach upon the site in dispute alleging it to be a courtyard and a part of their houses. When this encroachment was brought to the notice of the Municipal Committee, notices P.1 and P.2 were issued at the instance of one Ram Parkash.

I have heard the learned counsel for the parties and also gone through the relevant evidence on record. Admittedly, the Municipal Committee did not produce any record to show that the site in dispute was shown to be a `street'' in its records. It only produced certain sale deeds Ex. PW3/A, dated 13th November, 1922; Ex. DW7/A, dated 15th February, 1957; Ex. DZ/1 dated 21st June, 1960 and Ex. DW5/C dated 20th July, 1961, and on the basis thereof wanted to conclude that the site in dispute was a `street'' and the lower appellate Court also relied upon those sale deeds. The whole approach of the lower appellate Court in this behalf was wrong, illegal and misconceived. From the said sale deeds, it is nowhere proved that the site in dispute was a street as claimed by the Municipal Committee. Apart from that, there is no other independent evidence produced by the Municipal Committee to show that the site in dispute was a street. Moreover, the trial Court after discussing the oral evidence came to the conclusion that there was no cogent evidence on record to prove that the site in dispute was being used by the residents of the locality as open space, and the members of the public had been passing through it without any let or hindrance by the owners thereof and that unless it was proved that the same was being used by the members of the public without any let or hindrance from the plaintiffs and that the people at large had been using the same for having ingress to and egress from the well, the mere fact that the Northern side of the property in dispute was not built did not mean that the same fell within the definition of `street'' under the Haryana Municipal Act, 1973. Surprisingly enough no reference whatsoever has been made by the lower appellate Court on this aspect which was most material and relevant. Thus, viewed from any angle, in the absence of any cogent evidence that the site in dispute was being used as a street, it could not be held that the Municipal Committee was competent to issue the notices P.1 and P.2. That being the situation, the notices issued were illegal and without jurisdiction. The Municipal Committee nowhere claimed by virtue of said notices that the site in dispute was a street.

As a result of the above discussion, this appeal succeeds, the judgment and decree of the lower appellate Court are set aside and that of the trial Court decreeing the suit are restored with costs.