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Judgment
Hemant Gupta, J.—The plaintiffs are in the revision petition challenging the order passed by the Courts below on application under Order
39 Rules 1 and 2 of the CPC wherein the defendants were restrained from illegally and forcibly interfering in the Mandir building measuring 69 sq.
yards but injunction in respect of the remaining area was declined,
The plaintiffs have filed a suit for permanent injunction along with an application under Order 39 Rules 1 and 2 of the CPC to the effect that
plaintiff No. 1 is a registered Society under the Registration of Societies Act where plaintiff No. 2 are the devotees of the temple existing on the suit
property since year 1922. The suit property measures 330 sq. yards and comprises of portions of land owned by the then residents of the Mohalla
and was given to the plaintiff Society long ago. The devotees of the temple are having possession and ownership of the suit land since the year
1922.
It is further pleaded that some influential persons in connivance with the Punjab Wakf Board and officials of the Municipal Corporation,
Ludhiana, had attempted to grab the properly in dispute and for this purpose got issued a receipt dated 2.6.1983 from the Punjab Wakf Board as
well as receipt dated 11.7.1983 from the Municipal Corporation, Ludhiana. A plan for the house to be constructed in the name of Mrs. Raj
Kumari w/o Hans Raj- was also got sanctioned from the Municipal Corporation, Ludhiana. It was, thus, alleged that the Municipal Corporation
had no claim in respect of the suit property. The plaintiffs have further alleged that on the basis of fabricated documents Smt. Raj Kumari along
with Smt. Janak Jain and Santosh Goel had instituted a civil suit No. 84 dated 26.3.1984 for permanent injunction to restrain the defendants of the
said suit from interfering in the alleged possession of the suit property. The said suit was dismissed in default on 10.10.1991.
It alleged that the plaintiffs are regularly attending the religious prayers, rituals and gatherings. Akhand Paths and Jagratas are frequently held
there. Religious trees and plants are worshipped by the devotees and, thus, a decree for permanent injunction on an area measuring 330 sq. yards
of plot bearing No. B/IV 1/44/1 was claimed.
The Municipal Corporation contested the said suit and alleged that the plaintiffs have not come to the Court with clean hands. Under the garb of
religious sentiments, they want to encroach upon the disputed site for which the plaintiffs have no right, title or interest. It was admitted that the
Mandir building is constructed in an area of 69 sq. yards in the vicinity of the site in suit and the defendants are not initiating any action against the
Mandir building to honour the sentiments of the devotees. It was further alleged that the suit land is a Nazool land and belongs to the Municipal
Corporation, Ludhiana. The possession of the plaintiffs over the site in dispute since the year 1922 was denied. It is further stated that the building
plan submitted by Smt. Raj Kumari and others was rejected and that the defendants have no connection with the suit filed by Smt. Raj Kumari etc.
The learned trial Court found that once a party claims possession on the basis of ownership, possession can only be protected if ownership is
proved. The learned trial Court found that the plaintiffs have failed to prove the ownership of the residents of the Mohalla since the year 1922 who
allegedly gave the suit property to the Mandir and, thus, declined to grant the relief of injunction over the entire land measuring 330 sq. yards but
restrained the defendants to interfere in the possession of the Mandir over an area measuring 69 sq. yards.
The learned first appellate Court affirmed the order passed by the learned trial Court. It found that the pleadings of the plaintiffs are
contradictory with the documents placed on the record. The plaintiffs have pleaded that the disputed property was owned by the residents of the
Mohalla whereas in one deed of Parbhandhak Sabha it is mentioned that a portion of Chowk bearing property Shamlat measuring 330 sq. yards
was maintained/kept reserved by the inhabitants of the Mohalla for the construction of a Mandir. As per the contents of the said deed, the disputed
property is portion of a Chowk, a Shamlat property. The first appellate Court also found that the plaintiffs have not placed any material on the
record to prima facie show that the disputed property belongs to the plaintiffs. It also found that the boundary wall around the disputed property
was constructed by the plaintiffs just before the filing of the suit and was not in existence earlier. It was also found that the mere fact that religious
functions are held in the disputed site around the building of the Mandir does not constitute any legal possession.
The learned counsel for the plaintiffs-petitioner has vehemently argued that a suit was filed by Smt. Raj Kumari and others in the year 1984
against the Punjab Wakf Board as well as Tarlok Chand Bhagat, President-cum-Chairman of plaintiff No. 1. The said suit was filed on the basis of
a site plan sanctioned by the Municipal Corporation which pertained to this very site. Thus, the Municipal Corporation cannot now claim
ownership over the said property which was claimed by Smt. Raj Kumari and others as owned by them in the year 1984. However, the said
contention of the petitioners cannot be accepted. In the said suit, Municipal Corporation was not a party. In the written statement field in the
present suit, the Municipal Corporation has denied having sanctioned the plan in favour of Smt. Raj Kumari and others. Even the plaintiffs were not
a party in the said suit. Only Sh. Tarlok Chand Bhagat in his individual capacity was impleaded as defendant No. 1. Therefore, prima facie
inferences sought to be drawn by the petitioners are not possible.
The learned counsel for the plaintiffs- petitioner further contended that in the written statement filed by the Municipal Corporation, they have
taken a stand that the land in dispute is a Nazool land vested with the Municipal Corporation. However, the register of properties required to be
maintained by the Municipal Corporation in terms of Section 169 of the Punjab Municipal Corporation Act does not make mention of the property
in dispute. However, the said argument of the petitioners is being raised for the first time before this Court. Neither it was pleaded in the plaint nor
any argument was ever raised before the Courts below. However, the learned counsel for the respondent- Corportion has pointed out that the
contention is wholly misconceived. In fact, in the property register, the land in dispute has been reflected as property of the Municipal Corporation.
It is further contended by the learned counsel for the plaintiffs-petitioner that the stand of the Municipal Corporation that it auctioned the property
on 20.9.2000 is wholly incorrect. No such fact was disclosed in the written statement filed in the suit on 22.10.2001. It was, thus, contended that
the stand of the writ-petitioners in CWP Nos. 19930, 20029 and 20229 of 2002 that they are the auction purchasers is absolutely incorrect.
The plaintiffs have not pleaded that the property in dispute is not the property shown in the property register of the Municipal Corporation. If
the plaintiffs had pleaded such a fact, the Municipal Corporation would have submitted a reply. For the fist time before this Court, an argument has
been raised which has been controverted by the Municipal Corporation. Therefore, the argument raised by the plaintiffs-petitioner that the property
is not shown in the property register of the Municipal Corporation cannot be accepted.
It is true that the Municipal Corporation has not given any details of the auction of the property on 20.9.2000 and the subsequent confirmation
by the Municipal Corporation. The plaintiffs-petitioner have claimed possession over the suit property by virtue of a suit filed in September, 2001.
If the plaintiffs are the owners and in possession, they are entitled to injunction irrespective of the fact whether the Municipal Corporation had
auctioned the land or not. Both the Courts below have returned a concurrent finding of fact that the plaintiffs are not in possession of the entire land
measuring 330 sq. yards. However, the Municipal Corporation itself has pleaded that their exists a temple in an area measuring 69 sq. yards.
Injunction in respect of such an area has been granted against the Municipal Corporation on the basis of the averments made in the written
statement itself.
The plaintiffs have not produced any document to prove the ownership of the land measuring 330 sq. yards. In the absence of any evidence of
ownership of the plaintiffs, the stand of the Municipal Corporation that the land vests with the Municipal Corporation, prima facie, cannot be
disputed. The plaintiffs have to prove their case of ownership and consequent possession. Open land appurtenant to the building cannot be
deemed to be in possession of the plaintiffs so as to claim possession against the true owner. Both the Courts below have found that the plaintiffs
are not entitled to the injunction in respect of the entire land.
Hon''ble Supreme Court in the case of Mahesh Prasad Gupta v. R.G., Jharkhand High Court and Ors., Writ Petition (Civil) No. 318 of 2002,
has come heavily on the tendency of usurpation of public property in the name of religion and construction of religious places without permission
from the Municipal Authorities. The order of the Supreme Court dated 09.07.2002 in the aforesaid case reads as under:-
We see no illegality in the respondents taking steps to demolish the Mandir if it is constructed unauthorisedly and without building plans being
passed.
We see no justification whatsoever for the High Court at Ranchi to have given any permission with regard to the construction of any wall or with
regard to the diversion of drain, etc., referred to in the letter dated Ist February, 1993. Usurpation of public property in the name of religion and
construction of religious places without permission from the Municipal Authorities cannot be permitted. The modus operandi of grabbing public
land and erecting buildings illegally primarily for the benefit of the perpetuator has to come down with a heavy hand. We see no merit in this petition
and the same is, accordingly, dismissed.
It is, thus, apparent that the plaintiffs have tried to usurp the public property alleging the same to be the property of the Mandir without any
proof either of title or of possession in respect of land measuring 330 sq. yards.
There is no material illegality or irregularity in the findings recorded by the Courts below warranting interference in exercise of revisional
jurisdiction under article 227 of the Constitution of India. The revision petition is accordingly dismissed.