Faridabad Complex Administration vs Gindori Devi and Others

Arun Palli, J.—The trial Court decreed the suit of the respondents (plaintiffs) and injuncted appellant (defendant) from interfering in possession of the plaintiffs over the suit property and from demolishing the Amar Kund and other constructions existing thereon. First appeal, preferred by the appellants-defendants was dismissed vide judgment and decree dated 28.05.1986. This is how, this Court is seized of this regular second appeal filed by the defendant.

Parties to the lis, would hereafter, be referred to by the original positions in the suit.

Plaintiffs, filed a simpliciter suit for injunction, claiming themselves to be the owner in possession of the suit property, which purportedly consisted of a Chabutra, Well, Water-tank (Kund), bathroom and Khurlia for animals. Husband of respondent No. 1, purportedly purchased the Well and the land over which Amar Kund was in existence, along with other lands from Chiman Lal etc, vide registered sale deed dated 18.11.1929. Amar Kund, was stated to be comprised in khasra No. 2153/1520. Plaintiffs claimed themselves to be in continuous possession of the suit property. Grievance of the plaintiffs was, defendant i.e. Faridabad Complex Administration, despite having no right, title or interest in the suit property, were bent upon to demolish the construction existing therein. So much so, even a notice was issued in this regard on 28.12.1982. Thus, injunction was prayed for.

In defence, it was pleaded by the defendant, that the plaintiffs had illegally constructed a Chabutra, bathroom etc. on the suit property, which is otherwise a thoroughfare. The fact, that husband of plaintiff No. 1 had purchased the suit property was denied. It was alleged, even if there is any such sale deed, the same is a bogus document. It was maintained, that in the revenue record for the year 1974-75, the suit property was shown as a thoroughfare. And defendant being the owner, plaintiffs had no right to encroach upon the suit property.

Learned trial Court, on an analysis of the matter in issue and evidence led by the parties, was of the view, that the suit property was being claimed to be comprised in khasra No. 1520, by the plaintiffs. Defendant maintained, that the thoroughfare existed in khasra No. 1542 min. Therefore, it could not be said that the suit property and thoroughfare are the same property. It was found, that the evidence on record showed a drain of the Municipality existing on both sides of the road and the suit property was not beyond the drain. Thus, even the possibility of the plaintiffs having encroached the Municipal land was ruled out. Further, the defendants despite being in a position to produce a complete map/plan/aks shajra of the locality in which the suit property existed, failed to produce the zonal plan regarding the existence of the drain and thoroughfare etc. Thus, issue was decided in favour of the plaintiffs. Accordingly, vide judgment and decree dated 01.10.1985, the learned trial Court decreed the suit.

The defendant, being aggrieved against the decree dated 01.10.1985, preferred the first appeal. The learned 1st Appellate Court, on an examination of the matter and material on record, found that in the aksh shajra (Ex. P2) for the year 1939-40, Sarak Pukhta was shown in khasra No. 1022, while some portion of khasra No. 1520, was protruding in the said number. That shows, khasra No. 1520, from the very beginning, was slightly inside khasra No. 1020 and thus, it looked like an encroachment. Further, respondents-plaintiffs were willing to get the spot demarcated but the defendants objected thereto and thus, the Local Commissioner was not appointed. Zonal plans regarding the existence of drain and thoroughfare etc. were not produced by the defendants. Accordingly, the findings recorded by the trial Court, issue No. 1, was affirmed. Consequently, the appeal was dismissed, vide judgment and decree, dated 28.05.1986.

This is how, the defendant is before this Court in the present appeal.

I have heard Mr. Goyal, learned senior counsel for the appellant (defendant), and Mr. Sharma, learned counsel for the respondents (plaintiffs) and perused the records with their assistance.

Concededly, plaintiffs prayed for injunction, claiming themselves to be the owner in possession of the suit property. The suit property was purportedly consisted of Chabutra, Well, Water-tank (Kund), bathroom and Khurlia for animals. Amar Kund, purportedly existed in khasra No. 2153/1520. As against this, the defendant claimed the suit property to be a thoroughfare and the same was alleged to be comprised in khasra No. 1542. It would be apposite to point out here, respondents-plaintiffs did not claim any right, title or interest in khasra No. 1542, as was being claimed by the defendants to be a thoroughfare. Likewise, the defendants did not claim any interest in khasra No. 1520, as was stated to be owned and possessed by the plaintiffs. Thus, the short issue which evolved for determination before both the Courts below and even before this Court, is: Whether the construction i.e. Chabutra, Well, Water-tank (Kund), bathroom etc. existed in khasra No. 1520 or in khasra No. 1542? Alternatively, whether the said construction, partly existed in khasra No. 1520 and partly in khasra No. 1542 or in another number altogether. Thus, needless to assert, once this Court arrives at a conclusion that the construction, indeed existed in khasra No. 1520, then, definitely the plaintiffs being the owner, the defendant was rightly injuncted. On the contrary, if the said construction is found to be in khasra No. 1542, then the plaintiffs could not have been granted the injunction prayed for.

I am reminded to point out here, that this appeal was admitted by this Court on 12.12.1986. And after it matured for regular hearing, this Court, vide order dated 31.03.2011, with the concurrence of the learned counsel for the parties, directed the Tehsildar, Faridabad to demarcate khasra Nos. 1520 and 1542. He was further directed to find out, whether the existing construction raised by the plaintiffs, was encroaching upon khasra No. 1542 or not.

Pursuant to the order dated 31.03.2011, the Tehsildar, Faridabad, submitted his report, dated 03.05.2011. I have examined the said report in original and also the translated copy thereof. A bare reading of the said report, conclusively settles that the construction which already exists at the spot is in khasra No. 1520. In fact, as is so stated, no construction and possession was found in khasra No. 1542. I find it expedient, at this juncture, to refer to the conclusion recorded in the said report, which reads as thus:

Demarcation of Khasra No. 1520 and 1542 has been done at spot and marks has been put. And found correct at the site. Other rectangle numbers has also been verified. The construction which already been done at the spot is in Khasra No. 1520. There is no construction & possession has found in Khasra No. 1542.

(IV) Result of demarcation: - Demarcation of Rectangle and as per spot Khasra No. 1520 & 1542 has been done. In the Eastern side of Khasra No. 1520 is 3 Gadhtha, & In western side 3 Gadhtha, Northern side 5+3 = 8 Gadhtha, Southern side 5+3 = 8 Gadhtha. It is clear in the above mentioned site map. The construction which already been done at the spot is in khasra No. 1520. There is no construction & possession has found in Khasra No. 1542. Demarcation of Khasra No. 1542 has found correct as per site.

Another aspect, which assumes significance at this stage is, that in the original report, submitted by the Tehsildar, Faridabad, both the khasra numbers i.e. 1520 and 1542 are duly depicted by a hand-drawn map. An analysis thereof reveals that khasra No. 1542 is a thoroughfare. While, some portion of khasra No. 1520 protrude in khasra No. 1542 towards East. This, in the first blush, appears to be an encroachment upon khasra No. 1542. But indeed it is not.

In the conspectus of the position, as sketched out above, I hardly find any reason, least plausible, to interfere with the judgment and decrees rendered by both the Courts below. No question of law, much less a substantial question of law, arises in the present appeal. The same being completely bereft of merit, is accordingly dismissed. However, parties are left to bear their own costs.