Murti Shivji vs Municipal Council, Narnaul and Another

Dr. Bharat Bhushan Parsoon, J.—In a suit preferred by the petitioner for seeking decree of permanent injunction, the petitioner claiming himself to be owner in possession of the property, had challenged notice u/s 181 of the Haryana Municipal Council Act, 1973 whereby the Municipal Council, Narnaul had started proceedings of removal of encroachment at the municipal land made by Budh Ram son of Puran Chand who had filed the suit as Mohtmim/Manager of the petitioner - idol. By way of an application under Order XXXIX Rule 1 and 2 CPC, the petitioner had sought to restrain the defendants from demolishing the suit property which is in the nature of a tin shed and is used for tying of the cows and the other cattleheads.

The trial court in its order of 20.11.2013, after discussing entire factual matrix and attending circumstances came to a definite finding that neither there was any prima facie case in favour of the plaintiff nor balance of convenience was on his side. It was found that the suit property i.e., the tin shed was in possession of Budh Ram son of Puran Chand as a trespasser and that too upon government land and thus was not to be considered to be in possession in the eyes of law. For the similar reason, even report of building expert produced before the court consequently was held to be of no help to the petitioner. It would be relevant to mention that even in appeal preferred by the petitioner-plaintiff, no better result came to his way. In short, there are concurrent findings on matters of fact against the petitioner.

In this revision petition, it is claimed that since the petitioner is in established possession, he cannot be removed and his possession cannot be disturbed and that the courts below had erred in not protecting his possession.

Hearing has been provided.

Construction is in the nature of a tin shed. Proclaimed possession as owner by the petitioner has not even been prima facie sustained and supported by any material or circumstances on record. Rather, it has been found by the courts below that the encroachment in the nature of tin shed is on part of a public passage. The lower court had also prima facie found that in even earlier there was litigation to this effect. It had been initiated by Hira Lal, who was none-else than real brother of Budh Ram son of Puran Chand. The said suit was dismissed vide detailed judgment of 17.4.1974. Even appeal against the said judgment was dismissed by Additional District Judge, Narnaul on 5.4.1975. It was concurrently held by the said two courts that the encroachment was on part of the public passage. It is not a matter of dispute that all public passages and public property vest in the Municipal Council. This finding was approved by the appellate court.

From the entirety of facts and attending circumstances, it is clear that Budh Ram son of Puran Chand, by misusing the name of idol Murti Shivji established in Shiv Temple, Mohalla Jair Manderi, Narnaul, is consistently venturing since 1970s to legalize his unscrupulous encroachment made on a public passage though prima facie, the petitioner-idol has nothing to do with it.

Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, , Meghmala and Others Vs. G. Narasimha Reddy and Others, and a judgment of this Court in Tarsem Singh and others v. State of Haryana and others, 2005 (3) RCR (Civil) 645, it is claimed that even a trespasser in settled possession cannot be dispossessed even by owner of the property and has to resort to law. There is no dispute about this law and there cannot be any.

Unlike circumstances prevailing in these authorities cited by Counsel for the petitioner, there is no settled possession of the petitioner in the present case. Rather, it has clearly emerged that the encroachment is in the form of a tin shed which is on a public passage in respect of which the civil litigation has already ended against the petitioner (through his brother) who had entered the legal arena in 1970s to continue with the illegal encroachment under the protection of the petitioner idol.

No law permits encroachment of public property and that too in the nature of public roads and paths. Whatsoever be the claim of the petitioner, neither forcible dispossession nor illegal interference is being ventured by the respondents. Rather, Budh Ram who had ventured to take protection under the petitioner idol has not been able to even prima facie establish that the idol has anything to do with the property in dispute. It is clear that by way of contrivance and camouflage, Budh Ram has continued with the encroachment on public property to the inconvenience and disadvantage of the public which is legally authorized to use the same.

In view of concurrent findings of the courts below on clear and transparent facts against the petitioner-plaintiff, there does not exist any ground to interfere in the impugned orders.

There being no merit, the revision petition is dismissed.