Dalip Singh vs Municipal Committee

Hemant Gupta, J.—The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court on 02.06.1992 whereby the defendant''s appeal was accepted and judgment and decree passed by learned trial Court in favour of the appellant was set aside. The appellant filed a suit for permanent injunction for restraining the defendant-Municipal Committee from demolishing the wall of the plaintiff situated on the southern side of the house owned by the plaintiff. The challenge of the plaintiff was to a notice served u/s 172(2) of the Punjab Municipal Act, 1911, directing the plaintiff to demolish the wall on the southern side of the road being illegal construction on the municipal road. The stand of the plaintiff was that the said wall is in existence from the last 15-20 years.

In the written statement, the defendant alleged that the plaintiff has encroached upon an area of 55'' X 9'' of the road passing through khasra No. 3064 within 3 years of the filing of the suit and that the plaintiff has no concern with the site in dispute and prayed for the dismissal of the suit.

The learned trial Court decreed the suit for the reason that the defendant has failed to prove the width of the road at the spot and also not proved that how much area from the area of the road has been encroached upon by the plaintiff. It found that DW-1 Kartar Singh failed to prove width of the road from the report Ex. D2 and map Ex. D3. Even Sh. Tehal Singh, appointed as a local commissioner, examined as CW 1, has also failed to establish the width of the road at the spot. From the evidence on record, the Court held that defendant has failed to prove that the plaintiff had made any encroachment of the area of the road.

However, in appeal the learned first Appellate Court held that plaintiff has not led any evidence to prove his ownership over the land in question. In the absence of any document of title over the land in question, the plaintiff cannot claim title over the said part of the land on the basis of possession when the adverse possession is claimed against the Municipal Committee. The learned first Appellate Court found that Khasra No. 3064 was that of a street which is evident from the report Ex. D6 of the local commissioner coupled with the photocopy of map Ex. D7. In view of the said finding, the learned first Appellate Court set aside the judgment and decree passed by the learned trial Court and dismissed the suit.

In the present second appeal, the plaintiff has not sought to raise any substantial question of law. The ground of challenge is that the burden of proof of ownership in terms of Section 110 of the Indian Evidence Act is on the person who affirms that he is not the owner. Therefore, it is the Municipal Committee who has to lead evidence that the plaintiff is not the owner of the land in question.

The plaintiff has invoked the jurisdiction of the civil Court with specific assertion that he is owner and in possession of the suit land but there is no document of title in respect of land in question over which the Plaintiff claims to be the owner. The defendant has produced Ex. D6 and Ex. D7 and also examined Kartar Singh as DW-1 to assert that the area is municipal road. Sh. Tehal Singh the local commissioner examined as court witness has also supported such fact. In the absence of any evidence on the part of the plaintiff and the evidence of ownership produced by the defendant, I find that it is a finding of fact recorded by the learned first Appellate Court which is sought to be disputed only by seeking re-appreciation of evidence.

I do not find any substantial question of law arises for consideration of this Court in the present second appeal. Consequently, the present regular second appeal is dismissed.