Hari Singh vs Municipal Committee and Another

N.K. Kapoor, J.—This is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge reversing in appeal the judgment and decree of the trial Court whereby suit of the plaintiff was decreed.

Plaintiff claimed possession of plot No.4, Tobha Khana, near Sunami Gate, Patiala on the ground that plot in dispute is owned by him and is his ancestral property. He inherited it from his father Baru Singh after his death on 5.2.1970. According to the plaintiff, defendant No. 1 the Municipal Committee, Patiala has illegally occupied the same without the consent of the plaintiff and without any right or title and has also leased out the same to defendant No.2, illegally. The illegal occupation and the lease is stated to have been made 4 or 5 months prior to the institution of the suit. Since the defendants have refused to accept the claim of the plaintiff hence the suit.

Defendant No.1 controverted the material averments made by plaintiff in the plaint. Objection was taken with regard to the jurisdiction of the Court as well as to the validity of the notice u/s 49 of the Punjab Municipal Act, 1911. Defendant No.2, however, did not file any written statement.

On the pleadings of the parties, the following issues were framed:-

(1) Whether the plaintiff is the owner of the plot in dispute? O.P.P.

(2) whether a notice is required to be given u/s 49 of the Municipal Act? If so, its effect? O.P.D.

(3) Whether the civil Court has no jurisdiction to try the suit? O.P.D.

(4) Whether the suit is not properly valued for the purposes of Court fees and jurisdiction? O.P.D.

(5) Relief.

Trial Court on the basis of evidence came to the conclusion that plaintiff is owner of the plot is dispute and so issue No. 1 was decided in favour of the plaintiff. Under issue No.2, it was held that notice issued by the plaintiff u/s 49 of the Municipal Act is valid. Under issue No. 3 it was held that the civil Court has got jurisdiction to try the suit. Issue No. 4 was also decided in favour of the plaintiff. Resultantly, the suit of the plaintiff was decreed.

The lower Appellate Court instead of separately examining the findings of the trial Court in respect of each issue chose to examine these issues together. The lower Appellate Court chose to reverse the finding of the trial Court in respect of issue No. 1 holding that there is no proof on record with regard to an alleged Kabala on the basis of which name of Rania Kahar - Predecessor-in-interest of the plaintiff-finds recorded. Since there is no clear proof on record that Rania Kahar was owner of the property the plaintiff cannot be held to be the owner accordingly. Accordingly, the judgment and decree of the trial Court was set aside and suit of the plaintiff was ordered to be dismissed.

According to the learned counsel for the appellant, lower Appellate Court has erred in law in not properly perusing the documentary as well as oral evidence led by the plaintiff to prove his ownership of the plot in dispute which has consequently resulted in failure of justice. In fact there has been a misreading of evidence which has vitiated the judgment of the lower Appellate Court. Elaborating, the counsel made reference to document, Exhibit P-1, which the plaintiff had procured from the record of the Municipal Committee. According to the counsel as per this document the plot in dispute is shown to be owned by Rania Kahar who is the predecessor-in-interest of the present plaintiff. Since the Municipal Committee''s own record shows this property to be owned by Rania Kahar and there being no documentary evidence to prove that at any given time this property came into the ownership of the Municipal Committee; the lower Appellate Court indeed erred in law in upsetting the well considered judgment of the trial Court. Otherwise too, as per Section 56 of the Punjab Municipal Act, a Municipal Committee is required to maintain a register and a map of all immovable property of which it is the proprietor, or which vests in it; or which it holds in trust for the State Government. No such document has been adduced in evidence. In the absence of any such document necessary inference would be that the property is not owned by the Municipal Committee nor is being managed by it on behalf of some other authority and so any lease deed in favour of some other person on behalf of the Municipal Committee no way binds the plaintiff in any manner.

The learned counsel for the respondents on the other hand argued that it is for the plaintiff to prove that Rania Kahar was the owner of the site in dispute and since he failed to discharge this onus to the satisfaction of the Court below, the present appeal being devoid of any substance deserves to be dismissed. Otherwise too, the stand of the plaintiff also stands falsified as in the present case the Municipal Committee had been leasing out the property since the year 1965-66 whereas according to the case of the plaintiff, he had been dis-possessed 4/5 months before filing of the present suit, which was filed sometime in the year 1975.

It is the case of plaintiff that he inherited this plot from his fore-father. By way of evidence he stated that originally Rania Kahar was owner of the plot on the basis of some grant by the erstwhile rulers. On his death the property was inherited by Buta Singh, which was then inherited by Harnam Singh. On the death of Harnam Singh, property was inherited by Baru Singh, father of the present plaintiff. In this manner, the plaintiff lay claim to be the owner of the property and to prove his ownership placed on record the copy of the site plan, Exhibit P-1, prepared by the Municipal Committee few years back. Site plan, Exhibit P-1, refers to the various properties known as Tobha, near Sunami Gate, Patiala. It specifically gives the dimensions of the various properties possessed by various other owners, namely, Bir Singh, Malook Singh, Man Singh and others. Beside this, on a portion it is written that property is in possession of Rania Kahar on account of Kabala. This document also gives the particulars of the properties owned by the State Government. Authenticity of this document is not under challenge. In fact, it has come from the record of the Municipal Committee. What are the exact terms of the Kabala have not been properly explained by the counsel for the parties. All the same on the basis of this document it can be inferred that various properties marked on this map, exhibit P-1, clearly show possession as well as ownership of the persons whose name find recorded in this document. Evidence of the Municipal Committee is only to the effect that since the year 1965-66 it had been leasing out the property to various persons and the last time it had been leased to respondent No.2. No proof has been adduced by the Municipal Committee to prove its ownership of the plot in dispute. Municipal Committee has also not brought to the notice of the Court with regard to the list of properties which the Municipal Committee owns/manages on behalf of provincial government or any such body nor any such register maintained by the Municipal Committee has been adduced in evidence. Section 56 of the Punjab Municipal Act, 1911 deals with property/properties which vest in the Committee, as per Sub-clause (3), which reads as:-

"The Committee shall maintain a register and a map of all immovable property of which it is the proprietor, or which vests in it or which it holds in trust for the State Government."

Thus, a duty has been cast upon the Municipal Committee to maintain a register of properties which vests or which it holds as a trust for the State Government as well as map of all these immovable properties. No such document has been adduced by the Municipal Committee to prove its ownership or it being a trustee of the property in dispute. Thus, there is no proof to hold the property in dispute to be owned by the Municipal Committee. On the Contrary evidence led by the plaintiff i.e. oral as well as documentary - the copy of the site plan, exhibit P-1, procured by the plaintiff from the office of the Municipal Committee- lends credence to the case set up by the plaintiff that he is owner of the property having devolved upon him from his predecessors - in - interest from Rania Kahar downwards and so, I am of the view that plaintiff in fact is the owner of the property. As per the case of the defendant, it is only in the year 1965-66 that for the first time the property was leased out by the Municipal Committee, since the suit had been filed in the year 1975 the same is well within limitation. In any case, it is not even the case of the defendant-Municipal Committee that it has become owner of the property by adverse possession. Consequently, I set aside the judgment and decree of the lower Appellate Court and affirm the judgment and decree of the trial Court.

Parties shall however, bear their own costs.