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Judgment
The petitioner-Municipal Board, Raisinghnagar has
preferred the present writ petition, invoking supervisory
jurisdiction of this Court under Article 227 of the
Constitution of India, feeling aggrieved of the order dated
21.10.2014, passed by the Additional District Judge,
Raisinghnagar in Appeal No.6/2014, filed by the respondent
No.1 Smt. Pooja Kumari which appeal was directed against
the order dated 19.09.2014, passed by the Civil Judge
(Jr.Dn.), Raisinghnagar in an application for grant of
Temporary Injunction filed by her, under Order XXXIX, Rules
1 & 2 of the Code of Civil Procedure, 1908.
Shorn of unnecessary details, the necessary facts in a
nutshell are that the petitioner-Municipal Board,
Raisinghnagar had executed a registered lease deed dated
29.09.1970 conveying the rights of land admeasuring 80ft
X 60ft, in favour of a firm M/s Kumar Brothers, for
establishment of a petrol pump.
The ownership and title of the land admeasuring 80ft
X 60ft is not at all, in dispute, what is disputed is; the sides
of the plot in question.
The genesis of the entire dispute is; the site map,
inscribed on the aforesaid lease deed dated 29.09.1970,
according to which, the plot in question, was having it''s
one arm of 80 feet from East to West and another arm of
60 feet from North to South. It will be profitable to
reproduce recitals and sketch of the plot given in the said
lease deed dated 29.09.1970, hereunder:-
It has also been stated by the plaintiff that said M/s
Kumar Brothers was allotted a strip of land ad-measuring
12ft X 110ft abutting, the contentious land of the petrol
pump, by way of grant deed dated 24.06.1971. As stated
in para No.6 of the plaint, on 09.10.2001, respondent
Municipal Board, Raisinghnagar issued a notice, threatening
to demolish the construction raised by the It has also been
stated by the plaintiff that said M/s Kumar Brothers were
allotted a strip of land ad-measuring 12ft X 110ft abutting,
the contentious land of the petrol pump, by way of grant
deed dated 24.06.1971. A stated in Para 6 of the plaint, on
09.10.2001, respondent Municipal Board, Raisinghnagar
issued a notice, threatening to demolish the construction
raised by the plaintiff on the land of petrol pump. Plaintiff
preferred an appeal before the Sub-Divisional Officer,
Raisinghnagar, against the said notice dated 09.10.2001,
who had allowed the same, vide his order dated 19.06.2003
and upheld the construction, so raised by the plaintiff,
while directing the Municipal Board to maintain status quo
over the plot in question.
The plaintiff approached the Civil Court, by filing the
suit in question, for grant of Temporary and Mandatory
Injunction, faced with an action of the Municipal Board,
Raisinghnagar, scrapping the floor tiles/floor, machines and
fixtures installed on the front portion of the land
admeasuring 20ft X 60ft, on the Northern side of the
petrol pump. It has been stated in the plaint that the said
action of the Municipal Board, Raisinghnagar was illegal, as
neither any notice was ever issued to plaintiff nor any
acquisition proceedings were ever undertaken.
The petitioner-defendant Municipal Board,
Raisinghnagar filed a written statement and contested the
suit on various counts; including, questioning the bonafides
of the plaintiff and highlighting the concealment made by
her.
The defendants stated in their written statement that
the plaintiff has intentionally not disclosed the sides and
neighborhood of the subject land parcel. It was emphasised
that the plaintiff has concealed material fact in relation to
the subsequent judgment dated 07.02.2005, passed by
Rajasthan High Court in S.B. Civil Writ Petition
No.578/2004, while maintaining that the plaintiff had
encroached upon 1757.55 sq.ft land, which was part of the
Public Works Department and GREF road. Defendant
brought to the notice of the Trial Court, the facts regarding
order dated 03.03.2008, passed by the Collector, setting
aside the order dated 19.06.2003; and interim order dated
07.10.2003, passed by the Sub-Divisional Magistrate
ordering to eject the plaintiff from the encroachment made
by her. The defendant submitted that the plaintiff has not
taken any remedy against the order dated 03.03.2008,
which has attained finality; and as such, the possession of
the plaintiff on the contentious land is unauthorised.
The Trial Court, after hearing the parties at length,
allowed the application for Temporary Injunction, vide its
order dated 19.09.2014. While delving upon the issue of
prima facie case, the learned Trial Court examined the grant
deed dated 29.09.1970 and recorded a prima facie finding
in favour of the plaintiff about the ownership and
possession of the land admeasuring 80ft X 60ft. In wake of
such findings about title and possession, the Trial court
passed an injunction, restraining the respondents from
interfering in plaintiff''s possession and raising any
construction or interfering in any manner, with the subject
plot of admeasuring 80ft X 60 ft in the following terms:-
"VERNACULAR MATTER OMITTED"
The Trial Court, though had granted injunction in
favour of the plaintiff, however, made the said interim order
subject to the narration and recitals of the land, its
measurement and sides as depicted in the lease deed
dated 29.09.1970.
The respondent-plaintiff preferred an appeal against
the said order dated 19.09.2014, before the Additional
District Judge, Raisinghnagar inter alia with a prayer that
the operative portion of the order of the Trial Court, be
modified or altered to indicate the plot as 80ft from the
North to South and 60 ft from East to West, with an
additional prayer that the Municipal Board, Raisinghnagar
be directed to construct the road in accordance with the
original plan/map.
Learned Appellate Court heard the parties at length
and has found out an apparent incongruity in the site
plan/map drawn on the lease deed dated 29.09.1970 and,
thus, proceeded to delve deep into the documents and
recorded a finding that the land allotted, owned and
possessed by the plaintiff was 80 ft. from North to South
and 60 ft. from East to West and allowed the appeal filed
by the plaintiff with the following modification/observation:-
"VERNACULAR MATTER OMITTED"
Mr. Rajesh Joshi, learned Senior Counsel assisted by
Ms. Chavi Bardia navigated the Court through the pleadings
of the plaintiff to drive home his point, that the plaintiff has
intentionally not disclosed the sides of the plot, essentially
with a view to take undue advantage, to cover up her
encroachment over the Government land. He read the
averments in the plaint and contended that it was required
of the plaintiff to disclose demarcation, measurement of
sides and neighborhood of the plot, on which the petrol
pump has been installed. He contended that in a dispute
like the present one, it was minimum expected of the
plaintiff to have stated in the plaint, not only the
measurement, but also the neighborhood, along with map
to establish her ownership and possession. His contention
was that the plaintiff has encroached upon the excess land
and has been deceiving the authorities by showing the lease
deed dated 29.09.1970, allotment of strip of land
admeasuring 20ft X 60ft and allotment of adjacent land,
which had taken place on three different point of time.
Learned Senior Counsel for the petitioner drew
attention of the Court, towards Para Nos.2 and 6 of the
written statement filed by the petitioner-Municipal Board,
to buttress his argument that the plaintiff had not
approached the Court with clean hands while extensively
referring to various documents, including Commissioner''s
report, the order of the District Collector dated 07.10.2003
and judgment dated 07.02.2005 passed by this Court, in
S.B. Civil Writ Petition No.578/2004. He contended that the
plaintiff-respondent had approached the Court with
incomplete rather incorrect facts and hence she is not
entitled to get injunction, on account of her conduct.
Assailing the order under consideration, passed on
22.10.2014, Mr. Joshi read the same, in great detail and
argued that the learned Appellate Court has transgressed
the territories or confines, provided under the law. He
urged that the Appellate Court, while deciding an appeal
against the order, granting/refusing injunction, is required
to give a prima facie look at the order impugned, and the
Appellate Court cannot substitute its own findings over the
findings of fact recorded by the Trial Court.
With an expression of bewilderment, Mr. Joshi pointed
out that the learned Appellate Court has undertaken ardent
exercise of mathematical calculation to ascertain the fact-
position, measurement and location of the plot as if, the
Court were an Engineer. He submitted that the Appellate
Court has taken into consideration, various documents and
maps which were not even mentioned in the plaint. He
painstakingly submitted that the Appellate Court, in a way
has decided the Suit itself, even before the evidence of the
respective parties are led.
With these submissions Mr. Joshi argued that the
order impugned dated 21.10.2014, passed by the Appellate
Court deserves to be quashed and set aside.
Per contra, Mr. Rajeev Purohit, learned counsel for the
respondent-plaintiff submitted that the order under
consideration, passed by the learned Additional District
Judge, Raisinghnagar is perfectly just and proper in the
facts of the present case. He submitted that the non-
mentioning of the sides and neighborhood of the plot in
question in the plaint was unintentional, rather such
narration was not required inasmuch as, the plaintiffs''
possession in terms of the title was settled, on which the
petrol pump was being run for last 50 years. He submitted
that the possession of the plaintiff over the said land is
undisputed and so also the title in relation thereto. He took
this Court through the lease deed and the map approved by
the Burma Shell Petrol Company, (as it then was) and
contended that at the time of the installation of the Petrol
Pump, the Oil Company which is a Government Company,
had examined all title documents and possession and had
prepared a site map way back in 1954, according to which,
the possession of the land, on which, petrol pump has been
installed and established had been found. He had extremely
referred to these documents, to convince that measurement
and possession of the land parcel was 80ft from North to
South and 60ft from East to West. Such effort was made by
Mr. Purohit, obviously to urge that the Appellate Court has
reached to a correct conclusion, on the analysis of facts and
record.
Mr.Rajeev Purohit contended that as per the original
map/plan prepared for the newly constructed road in
question, as conceived by the defendants; the road coming
from the underbridge was beyond the petrol pump
boundary, which however, has been deviated by the
defendants from the original map and the road has been
realigned by 20ft, towards petrol pump and in this process,
the Municipal Officers have stripped off the floor/floor tiles
on the disputed land admeasuring 20ft X 60ft. He
submitted that this land was integral part of the petrol
pump, owned and possessed by the plaintiff. He had shown
various photographs, placed by him along with the reply,
to satisfy that the subject land, admeasuring 20ft X 60ft is
owned and possessed by the plaintiff and the same is not in
the road boundary.
I have heard learned counsel for the parties at length
and perused the record. The contextual facts, appear to be
complex and complicated, but the essence of the dispute
rests in a very narrow compass; viz., the "sides and not
the size of the plot". The size of the disputed plot, 80ft X
60ft has not been disputed by any of the parties. What is
disputed is, which side of the plot is 80ft and which side is
60ft.
The bone of contention is, the site map given on the
lease deed dated 29.09.1970; a casual look thereupon
brings out the apparent inconsistency therein. On perusal of
the site map one finds that the West side has been shown
in the right side of the North whilst East has been shown on
the left side of the North, which is per se erroneous. The
size of the plot has been shown as 60ft parallel to the
Railway Line whilst 80ft is diagonal to the Railway Line.
However, all other documents, prepared right in the year
1953-54 (when the said land was allotted for the
establishment of the petrol pump to M/s Kumar Brothers)
certified copies whereof, has been placed by the respondent
along with reply as Annexure-9, shows that the plot of
petrol pump is 80ft parallel to the Railway Track and 60ft
diagonal to it, and parallel to the Canal/Mandi Minor.
Be that as it may, without delving into the documents
in detail, suffice it to observe that there is a scope of
confusion regarding the sides of the plot, namely; which
side is 80 ft and which is 60 ft. All the parties are ad-idem
that the plot in question is 4800 sq. ft. admeasuring 80ft X
60ft, the quarrel is confined to, which side is of 80 ft
length?
It is also not in dispute that the land of the petrol
pump had been allotted to M/s Kumar Brothers way back in
the Year 1954 and possession thereof had been handed
over. However, the contentious lease deed came to be
executed on 29.09.1970, wherein the sides of the plot have
been mentioned, which may be incorrect or discordant as
claimed by the plaintiff.
Be that as it may, it is a matter of evidence and can
be decided only after the evidence and thorough
examination of the documents on record, based on
pleadings of both the parties.
The argument of Mr. Joshi appears to be correct that
the Appellate Court exceeded its jurisdiction, in taken unto
itself, the task of measuring the land, foot by foot and inch
by inch; and that the plaintiff had not laid before the Court,
the complete and correct facts; and further that the
finding of encroachment has attained finality, pursuant to
the order of Collector, passed in the year 2003, wherein
authorities concerned have found that the plaintiff''s was
possessing extra land admeasuring 1792 ft.
The approach of the Appellate Court dated
19.09.2014, cannot be approved or countenanced in
principle. However, in ultimate analysis, the Appellate Court
has reached to a conclusion, which prima facie cannot be
said to be erroneous or contrary to record; viz., the plot in
question is having its boundary 80 ft. from North to South
and 60 ft. from East to West.
It is pertinent to note that the petitioner Municipal
Board, Raisinghnagar has also not established that the
plaintiff is having possession of excess land or more than
what was conveyed or allotted to it. The Revenue and
Municipal authorities seem to have proceeded solely on the
edifice of the map, given in the lease deed, which itself is
inconsonant. No body seems to have undertaken the
exercise as to what is the total land holding or the
ownership of the plaintiff, vis a vis the actual possession.
The plaintiff also has not tried to prove that her possession
is not more than the title/ownership, nor has she taken up
any pleadings seeking correction/amendment in the site
plan shown in the lease deed.
The Appellate Court, has though gone beyond the
scope of the appeal and pleadings, but however, modified
the order in appeal, only to the extent of mentioning of the
sides of the land, namely 80 ft North to South and 60ft East
to West. Except this minor modification, the order of the
Trial Court has been kept intact. It is to be noticed that
the possession of the plaintiff to the extent of plot size of
80ft X 60ft had already been protected, by the Trial Court,
which order has not been challenged by the defendants.
It was informed by the learned counsel for the
respondents that the construction over the front side of the
petrol pump has been razed by the petitioner-Municipal
Board, before passing of the order dated 21.10.2014 by the
Appellate Court.
In light of the above discussion, the order of the
Appellate Court could have been set aside and the matter
could have been remanded back to the Appellate Court, but
this Court cannot lose sight of the fact that the order of
Appellate Court was passed on 21.10.2014 and since then
the matter is pending consideration before this Court, along
with the entire record of the Trial Court. Remitting the
matter to the Appellate Court would not serve anybody''s
cause.
Any interference at this stage, after about two and a
half years of the passing of the order impugned, would
result in more complications rather than resolving it.
Be that as it may, being mindful of the fact that the
petrol pump, shops and other construction, pursuant to
validly conferred title to the plaintiffs are existing on the
subject land of course with genuine dispute about
demarcation, it would be in the interest of justice that the
suit itself be decided expeditiously and till disposal of the
suit, ''status quo'' as it exists today, be maintained.
Counsel for the parties have informed that the floor
and machines installed on the front portion of land
admeasuring 20ft X 60 ft. of the petrol pump has been
removed and a road connecting the under bridge; though
not perfectly smooth motorable does exist, it is deemed
appropriate and hence ordered that till disposal of the suit,
''status quo'' on the 20 ft X 60 ft strip of land on the
Northern side (front side) of the petrol pump shall be
maintained by the parties to the suit.
The record of the case had been summoned by this
Court on 12.12.2014, as a result whereof, the proceedings
in the suit are stalled. The Registry is directed to remit the
record of the case to the Trial Court forthwith. Both the
parties shall appear before the learned Trial Court on
22.05.2017, which shall commence and take up the
proceedings in the suit, with a goal to dispose it, as early as
possible, preferably within a period of 18 months from
today.
The expeditious disposal of the present suit is
warranted as it is not only a question of individual right of
the plaintiff, but it is equally a question of convenience and
need of the citizens who are entitled to have convenient and
hassle free motorable road.
With these observations, the present writ petition filed
by the Municipal Board, Raisinghnagar is disposed of.