Om Parkash vs Municipal Committee

Paramjit Singh Patwalia, J.—This regular second appeal of plaintiff is directed against the judgment and decree dated 14.03.1997 passed by learned Civil Judge (Sr. Divn.), Palwal whereby suit for permanent injunction filed by appellant-plaintiff has been dismissed and against the judgment and decree dated 18.12.1998 passed by learned Additional District Judge, Faridabad whereby appeal preferred by appellant-plaintiff has also been dismissed. For convenience sake, hereinafter, reference to parties is being made as per their status in civil suit.

The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the plaintiff filed a suit for permanent injunction with the averments that he is owner in possession of a plot bearing khewat/khatoni No. 3680/4481, rect. No. 130 killa No. 14/3/3(0-14) situated within the municipal limits of Palwal City, Tehsil Palwal. It was pleaded that defendant has no right, title or interest in the suit property and it never remained in possession of the suit property. The plaintiff also filed a suit against Nanak Chand regarding the suit property and appeal arising from the said suit is also pending. The defendant allegedly threatened to construct a road through the suit property for which it has no right. The plaintiff asked the defendant not to construct the road on the suit property, but to no avail. Hence, suit was filed.

Upon notice, the defendant resisted the suit and filed written statement taking preliminary objections of maintainability, locus standi and estoppel. On merits, it was pleaded that neither the plaintiff nor his vendors or his attorney Tilak Raj was owner in possession of the disputed killa No. 14/3/3. In civil suit titled ''Hari Singh etc. v. Tilak Raj etc.'', the suit land has been declared as public passage. It was further pleaded that doors of the residents of Devi Nagar Colony, Palwal open in the disputed property. The defendant has constructed a pucca public street for egress and ingress for the public and the same is being maintained by the defendant. The pucca drains are also passing through the disputed property which are being maintained and looked after by the defendant.

Replication, controverting the allegations made in written statement and reiterating the averments made in plaint, was also filed.

On the basis of pleadings of parties, the Court of first instance framed following issues:

"1. Whether the plaintiff is owner in possession of the suit land? OPP

Whether the suit is not maintainable? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Relief."

After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal which has also been dismissed by the lower Appellate Court. Hence, this second appeal.

When the appeal was admitted, following substantial questions of law were framed for consideration in this appeal:

"1. Whether the plaintiff -appellant could be non-suited in view of the earlier judgment dated 21.11.1987 passed by the Addl. Distt. Judge, in a litigation between Tilak Raj @ Tulsi Ram son of Chiman Lal on the one hand and Hari Singh son of Rup Chand on the other, especially when RSA No. 371/1988 is pending disposal in this court?

Whether the suit property could be termed as a public street in view of the evidence led by the parties?"

I have heard learned counsel for the parties and perused the record.

Learned counsel for the appellant vehemently contended that impugned judgments and decrees of the courts below are perverse, illegal and result of misreading of documentary evidence on record specifically khasra girdawaris and jamabandis. Learned counsel further contended that the plaintiff is owner of rect. No. 130 khasra No. 14/3/3 (0-14) situated within the municipal limits of Palwal and defendant-Municipal Committee, Palwal has no concern with the suit land. The suit land has never been acquired by the defendant. Once ownership and possession of the plaintiff is proved by way of documentary evidence, he has every right to seek injunction against the Municipal Committee, Palwal.

Per contra, learned counsel for the respondent vehemently opposed the contentions of learned counsel for the appellant and contended that there is a concurrent finding that road is in existence at the spot, therefore, the plaintiff has lost his right in the suit property.

I have considered the rival contentions of learned counsel for the parties.

Admittedly, the plaintiff has a title over the suit land and defendant-Municipal Committee has not been able to show as to how the plaintiff has lost his title in the suit land. No evidence has been brought on record by way of demarcation report that any road is passing through the plot of the plaintiff. The witnesses of the defendants deposed that disputed land was being used by the public at large and Municipal Committee had laid a water pipe line through the suit land. No doubt, the public street vests in the Municipal Committee in view of the provisions of the Haryana Municipal Corporation Act, but the Municipal Committee is required to maintain a register of public streets and streets, but there is no shred of evidence in this regard. The defendant did not produce any evidence to show that a street passes through the property of plaintiff. It has been admitted by the witnesses of defendant that land of plaintiff has never been acquired, therefore, question of constructing road over it does not arise. An identical issue arose before the Hon''ble Supreme Court in Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj, wherein it has been held as under:

"10. If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as a pathway, (2) it cannot be said that the putting up of the structures for installing the statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorized acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality.

In the result, we hold that the plaintiff would be entitled to a decree for permanent injunction restraining the Municipality from putting up the said structures on a part of the said public pathway, and the suit in so far as it asked for a decree for possession would be liable to be dismissed. "We allow the appeal in part. As both the parties have succeeded and failed in part, they will bear their respective costs throughout."

On one hand, the plaintiff has proved his title over the suit land and on the other hand, the defendant has failed to prove that any road passes through the land of the plaintiff. So being the position, there was no occasion for the courts below to place reliance upon the judgment dated 21.11.1987 which is not inter parties. The said judgment is not binding upon the plaintiff.

No other point has been raised. In view of above, appeal is allowed, impugned judgments and decrees are set aside, suit of plaintiff is decreed restraining the defendant from encroaching upon any portion of the suit property and to construct road on the same. Decree-sheet be prepared.

Costs made easy.