Municipal Council vs Subhash Chand and Others

Rakesh Kumar Jain, J.

CM-3468-C-2012

For the reasons mentioned in the application, supported by an affidavit, the delay of 83 days in re-filing of the appeal is hereby condoned.

CM. stands disposed of.

RSA-1297-2012 (O&M)

The defendant is in appeal against the judgment and decree of both the Courts below. The plaintiff filed suit for declaration that he is owner in possession of plot measuring 92 sq. yards in which the defendants have no right, title or interest and the entry in the municipal record showing the land in dispute in the name of Municipal Council, Nabha, is totally illegal and liable to be corrected by incorporating the name of the plaintiff and prayed for mandatory injunction directing the defendants for sanctioning the proposed site plan applied by the plaintiff for which he had already deposited requisite fee on 14.02.2005 which has been kept by them in abeyance, without sanctioning and also prayed for permanent injunction to restrain them in his peaceful possession.

The case of the plaintiff is that he had purchased the suit property from previous owner Wasakhi Ram and Lachhman Das vide registered sale deed dated 10.02.2003 and the mutation on the basis of that sale deed is also sanctioned in his favour, but the entry in Municipal Council record is in the name of the defendants which is liable to be corrected.

In the written statement, it was denied that the plaintiff has become the owner of the suit property and challenged that the mutation is forged, vague and result of manipulation in connivance with the revenue authorities. It was further averred that the defendants are the owners of the suit property measuring 0 kanal 3 marlas on which the plaintiff had made encroachment and had also constructed a shop without getting any site plan sanctioned which is mandatory in view of Section 198 of the Punjab Municipal Act, 1911 (here-in-after referred to as the "Act"). The plaintiff had applied for sanctioning of site plan on 20.01.2005 which could have been sanctioned within 60 days up to 19.03.2005, but it was under process and when it came to the notice of the defendants that the suit property belongs to the Municipal Council, notice under Section 195-A of the Act dated 18.02.2005 was issued, but the plaintiff had already erected the construction on the suit property which is liable to be demolished and when notice under Section 195-A of the Act was sent to the plaintiff, the application for sanctioning of the site plan automatically stands rejected. It was also alleged that the suit of the plaintiff is not maintainable as no notice under Section 49 of the Act was served before filing of the suit and the sale deed in the hands of the plaintiff cannot be relied upon.

The plaintiff did not file replication and on the pleadings of the parties, issues were framed by the Trial Court. Both the parties adduced their respective oral as well as, documentary evidence. The Trial Court partly decreed me suit with the following order:--

"It is hereby ordered that the suit of the plaintiff is partly decreed for declaration to the effect that the plaintiff is owner and in possession of the land/plot measuring 92 Sq. Yards as fully detailed in the head note of the plaint to the extent of 1/2 share only and the defendants have no right, title or concern whatsoever, in the above noted land as a consequential and alternative relief the entries in the Municipal Record stands in the name of Municipal Council, Nabha qua the land in dispute are also illegal, false and fabricated, and the same be corrected and in place thereof the name of the plaintiff be entered in the concerned Municipal record subject to lawful charges, if any and further the defendants are restrained from interfering into the peaceful possession of the plaintiff over the above said land illegally and forcibly."

The plaintiff was satisfied with the judgment and decree of the Trial Court, but the defendants challenged the same by way of statutory appeal which was dismissed on 22.07.2011.

Learned counsel for the appellant has submitted that the appellant is the owner of the property in dispute and the entry made in the assessment register is sufficient to prove the title of the Municipal Council over the suit property. However, this argument cannot be accepted because the appellant had examined Devender Singh (DW1) who had stated that he would produce the document as and when available, but except for his bald statement, no evidence has been brought on record to prove as to how the appellant is the owner of the property in dispute. The Court had found that the evidence led by the appellant in regard to the ownership of the plot in question is not sufficient to contradict the evidence led by the plaintiff to prove that, he is the owner in possession of the property in dispute, rather it has been found from the evidence led by the plaintiff that the plot measuring 92 sq. yards was purchased by him from Wasakhi Ram and Lachhman Dass vide registered sale deed dated 10.02.2005 and their names have also been depicted in the jamabandi after the mutation was sanctioned in their favour. The Court has also found that the identity of the plot has been established from the description of the boundaries, but there is no document on the record to dispute the ownership which was transferred in favour of the plaintiff by way of registered sale deed. In view thereof, I do not find any merit in the present appeal as no question of law much-less substantial is involved therein.

Dismissed.