Municipal Committee, Rewari vs Parkash Chand

B.S. Yadav, J.—The present Respondent, Parkath Chand had filed the suit, which has given rise to this appeal, against the present-appellant, Municipal Committee, Rewari (hereinafter referred to as the Committee). In the plaint, it was alleged that he had filed a plan for approval in the Committee for construction on the site delineated by letters A, B, C and D (in the plan Ex. PE 7/1). The Committee, vide its resolution dated February 20, 1968, entrusted the plan to a sub-committee which consisted of two members. The sub-committee approved and sanctioned the plan on March 4, 1968. The Plaintiff is the owner of the area delineated by letters A, B, C and D a ad has been in its possession since long. There is a Chabutra delineated by letters A, B, K and L, which is in existence since long and he is in its possession for the last 60 years- Over the Area A, B, K. and L, the Plaintiff has constructed a Chhaja delineated by letters E, F, and I on the first floor of his house. The members of the Committee are inimical to him. The Committee had issued notices under Sections 172 and 195-A of the Punjab Municipal Act on April 4,1970, requiring him to remove the Chhaja within 72 hours. The Plaintiff farther alleged that the notices issued to him were mala fide, arbitrary, illegal and without jurisdiction as the Chhaja is not projecting over any public street or thoroughfare and on the other hand, it is projecting on his own site. The Plaintiff prayed for permanent injunction, restraining the Committee from demolishing the Chhaja.

The Defendant-Committee contested the suit and pleaded that the Chabutra in question is an encroachment upon public street. The Chabutra was constructed by the Plaintiff after notice was issued for demolishing the Chhaja. The sub-committee was not constituted according to law and the Committee could not delegate its authority to sanction the plan to it Thus, the plan sanctioned by the sub-committee cannot be considered to be duly sanctioned. The other allegations of the Plaintiff were also denied. Upon the allegations of the parties, the learned trial Court framed the following issues:

Whether the Plaintiff is the owner of the portion market ABKL as shown in the site plan attached with the plaint ? OPP

Whether the Committee had not granted sanction to the Plaintiff for raising construction on the Chabutra in dispute ? OPD (Onus objected to)

Whether the Sub-Committee which allegedly sanctioned the site plan of the Plaintiff was not properly constituted ? If so, to what effect ?

What is the effect of the Plaintiff having constructed the Chabutra and Chhaja instead of the shops for the construction of which he had obtained sanction of the Committee ?

Whether the notices issued to the Plaintiff and referred to in the plaint are illegal, void, without jurisdiction, mala fide and arbitrary as alleged in the plaint ?

Relief

Under issue No. 1 it was held that the Plaintiff was not the owner of the site marked A, B, K and L. Under issues No. 2 and 3 it was held that the sub-committee appointed by the Committee consisted of only two members, while under rules it should be of 3 members and therefore, the sub-committee was not a legally constituted one and could not give a valid sanction to the plan submitted by the Plaintiff for raising the construction. Under issue No. 4 it was held that the Plaintiff had sought sanction for the construction of the shop, but instead of a shop, he has constructed a Chabutra on the ground floor and a projecting Chhaja on the first floor and as such, the Plaintiff cannot be deemed to have obtained legal and valid sanction for the construction in question. However, it was further held that the Defendant-Committee had not been able to show how it had been prejudiced by the construction of the Chabutra and the Chhaja and thus, there was no material defect if instead of a shop, the Plaintiff had constructed a Chabutra and the Chhaja, Under issue No. 5 it was held that the notices served by the committee were legal. Asa result of the above findings, the Plaintiff''s suit was dismissed.

The Plaintiff filed appeal against the dismissal of his suit. It w"s heard by the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Narnaul. He held that the predecessors-in-interest of the Plaintiff were in possession of the site under the Chabutra, at least since 1956 and in view of Section 110 of the Evidence Act, the onus shifted upon the Defendant-Committee to prove its ownership over the said site and that it had failed to discharge the same It was also held that the sub-committee appointed by the Committee to sanction the plan of the Plaintiff had not been validly constituted, but in spite or that the Plaintiff was entitled to succeed due to his long occupation of the lite in dispute As a result of the above findings, he accepted the appeal and decreed the suit of the Plaintiff The Defendant Committee has now come to this Court in second appeal

The finding of the learned lower appellate Court that the Plaintiff or his predecessors-in-interest has been in possession of the site under the Chabutra at least since 1956 is a finding of fact. The Learned Counsel for the Appellant failed to point out that the said finding was not based upon evidence. It may be mentioned here that the Plaintiff had produced some rent notes and also examined witnesses to show that the shop had been leased out to different persons and in the rent notes there is a mention of the Chabutra in front of the shop. The learned trial Court discarded that evidence on two grounds: firstly, that it was an admission in one''s own favour and much reliance could not be placed upon it and secondly, at the most the possession over the site under the Chabutra was established since 1956 and onwards and was not of 50 or 60 years old, is alleged in the plaint. The learned trial Court failed to take into account that those rent notes were executed by other persons in favour of the pre-de:essors-in interest of the Plaintiff and the said documents were relevant u/s 13 of the Evidence Act and therefore, were admissible in evidence. It cannot be said that those were admissions of the Plaintiff or his predecessors-in-interest in their own favour. Even if the Plaintiff had not proved his possession for the last 50 or 60 years, as alleged in the plaint, the trial Court was not justified to ignore the fact that the Chabutra was in existence at least since 1956

The Plaintiff had made construction over the site in dispute after the plan had been sanctioned by the sub-committee of the Committee. The notice u/s 172 of the Punjab Municipal Act was issued to the Plaintiff on April 6, 1970. In such circumstances, the onus clearly fell upon the committee to prove that the Plaintiff was not the owner of the site in dispute. Section 110 of the Evidence Act reads as follows:

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

This section same up before this Court for interpretation in Regular Second Appeal No. 17 of 1965, Katha Singh v. Municipal Committee, Narnaul R.S.A. No. 17 of 1965, decided on 15th December, 1971. In that case also, the Municipal Committee, Narnaul had issued notice to Katha Singh, Plaintiff of that case for demolishing the Chabutra which was in front of his house on the ground that it was an encroachment upon a public street Katha Singh filed a suit challenging the notice. The trial Court decreed that suit but the lower appellate Court accepted the appeal of the Municipal Committee and dismissed the suit on the ground that the Plaintiff had failed to prove his ownership over the site under the Chabutra constructed by him in front of his house. The Plaintiff came to this Court in second appeal. It was remarked:

The basic legal infirmity in the judgment of the lower appellate Court emerges from the approach to the placing of onus with regard to the proof of the question of ownership of the site in dispute. He has altogether overlooked the fact that both, at the time when the notice was served on the Appellant, as also at the time when the present suit was filed, the Chabutra existed on the site in question indicating the possession of the Appellant over the site in dispute and that this fact has not been challenged by the Respondent Municipal Committee Once the possession of the Appellant over the site is established, then the onus to prove the ownership shifts to the person, in terms of Section 110 of the Indian Evidence Act, who disputes the ownership of the site of the person who is actually in possession thereof The lower appellate Court has obviously ignored this legal aspect of the matter and illegally placed the onus on the Plaintiff Appellant to prove his ownership of the site in question. Thus, the finding, that the Appellant had failed to prove his ownership of the site in question and hence, not entitled to the injunction, stands vitiated and is patently illegal.

The above observations clearly apply to the facts of the present case. As the Plaintiff had proved his possession over the site in dispute, at least since 1956, the onus was upon the Defendant to prove that this site was part of a public street.

The learned lower appellate Court has discussed the evidence of the parties and has returned findings to the effect that the Defendant-Committee had failed to prove that the site in dispute was a part of the public street This, again, is a finding of fact and is therefore, binding on this Court. It has not been argued that the said finding of fact is vitiated by any illegal approach to the evidence.

The Learned Counsel for the Appellant argued that the Chabutra, in respect of which, the Committee had issued notice to the Plaintiff had been constructed by him recently. The Plaintiff has stated on oath that he has constructed this Chabutra on the site of the old Chabutra As noticed earlier, the Plaintiff had filed an application to reconstruct his shop and according to the plan, he wanted to construe the shop over the site under the Chabutra, but, later on, it appears that he changed his plan and constructed his shop at the site of his old shop and the Chabutra at the old site. Thus, the reconstruction of the Chabutra will not weaken the Plaintiff''s case about the possession of his predecessors-in-interest over the site under the Chabutra.

The Learned Counsel for the Appellant argued that both the Courts below have held that the constitution of the sub-committee appointed by the Committee to go into the application and the building plan of the Plaintiff and grant sanction after enquiry, was against the rules and therefore, it will have to be held that the constructions made by the Plaintiff are without proper sanction. I am doubtful if the Committee can be allowed to raise this plea. The Committee first delegated its powers to a sub-committee and when the subcommittee granted sanction, the Plaintiff made his constructions. The Committee cannot now be heard to say that the constitution of the sub-committee was illegal and therefore, the Plaintiff''s construction was without proper sanction.

The Learned Counsel for the Appellant further argued that the Chabutra and the over-hanging Chhaja were not shown in the building plan and those had been constructed in place of the shop for which the sanction was given. Though this point was raised in the trial Court, but in the lower appellate Court this point was not raised. The Appellant cannot be allowed to raise this plea at this stage. Moreover, the Committee is intending to take action against the Plaintiff on the ground that the Chhaja was projecting over the public street and that the Chabutra was also an encroachment on the public street. Both the learned Courts below have held that the Chhaja is projecting over the Chabutra of the Plaintiff. As discussed earlier, the site under the Chabutra has not been proved to be part of the public street.

For the foregoing reasons, I do not find any force in the present appeal. The same is hereby dismissed However, I make no order as to costs.