Pritam Singh vs Executive Engineer, Public Health and Others

Sham Sunder, J.—This appeal is directed, against the judgme and decree, dated 5.9.2006 rendered by die Court of District Judge, Yaraunanagar via which, it accepted the appeal and set aside the judgment and decree dated 1.10.2006 rendered by the Court of Additional Civil Judge (Senior Division) Jagadhri vide which it decreed the suit of the plaintiff/appellant.

The plaintiff/appellant claimed himself to be the owner of the land, in dispute, was stated that the defendants/respondents, had no right, and title in the property, be they proposed to dig the area, to lay sewerage pipe unauthorizedly. It was further Mat that the land had not been acquired by the State, in public interest. It was further stat that the berms of the metalled road, were available, to the defendants, to lay the sews age pipeline, instead of unauthorisedly interfering into the possession of the plaintiff/appellant over the land, owned by him. It was further stated that despite the injunction under, passed by the Court, the defendants laid a sewerage pipe in the land of the plaintiff/appellant. Accordingly, a suit for mandatory injunction was filed.

The defendants, put in appearance and filed written statement, wherein they to up various objections, and contested the suit. It was stated that there existed a metal road, for the use and benefit of the inhabitants of the residential colony. The und ground sewerage pipe had been laid, adjacent to the metal road, comprising kha No. 35/3/2, which abutted the houses of the inhabitants of the area. It was further sta that no land owned by the plaintiff/appellant had been used for the purpose aforesaid was further stated mat the site plan, was got duly approved, before the sewerage pi was laid. It was further stated that the suit, was not maintainable.

On the pleadings of the parties, the following issues were struck:

i) Whether the plaintiff is owner in possession of the suit land? OPP

ii) Whether the plaintiff is entitled to injunction as prayed for? OPP

iii) Whether the suit of the plaintiff is not maintainable? OPD

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

v) Whether the plaintiff has no cause of action for filing the present suit? OPD

vi) Whether the defendants are entitled to special cost u/s 3 5-A of C.P.C.?

vii) Relief.

After hearing the counsel for the parties, and on going through the evidence and record of the case, the trial Court, decreed the suit of die plaintiff/appellant.

Feeling aggrieved an appeal was filed by the defendants and the cross-objections/cross appeal, was filed by Pritam Singh, plaintiff. The court of District Judge, Yamunanagar accepted the appeal, filed by the defendants, whereas dismissed the cross-appeal, filed by Pritam Singh, plaintiff.

Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by Pritam Singh plaintiff/appellant.

I have heard the counsel for the parties, and have gone through the documents and record of the case, carefully.

From the perusal of the judgments of the Courts below, it is evident that Pritam Singh was not the sole owner of the property, comprising khasra No. 35//3/1 and 35//4. He had only 1/7 share, in the said property. His two brothers namely Ajmer Singh and Bal Kishan also had 1/7 share each, in khasra No. 35//4 (8-0). Both of them sold 19-1/2 marlas each of land, for valuable consideration to different persons. It means that the land, which was purchased by the three brothers, was fragmented into small plots. At the times of filing the suit, there was a 22 ft. wide strip of land, which was being used, as a street, by the owners of those plots. This fact was not pleaded by the plaintiff/appellant, in his plaint. On the other hand, the plaintiff/appellant stated in the plaint that this 22 ft. wide strip of land was his private property. The property, in dispute falls within the limits of the town. Section 2(33) of the Haryana Municipal Act, 1973, lays down that to make a site to be a street, it must be shown that it was being used by the persons, as a means of access to or from any public place or thoroughfare. Since 22 ft. wide strip of land, never remained, under the control of the owners, they had no right, to prevent the public, from using the same. According to Section 2(33) of the Haryana Municipal Act, 1973, when the owner of the property has by his own volition, permitted, his property to be converted into a street, then he has no right, to claim any compensation, when the same property, is made a public street, u/s 171(4) of the Act. It was the case of the defendants that the sewerage pipeline, had been laid, in the land, comprising rectangle No. 29, Khasra No. 18/2(0-10), 23/2(0-16) rectangle No. 35 Khasra No. 3/2(0-16), 8/1 (0-16), 13/5 (1-6), 18/5 (1-6) and 23/5 (0-16). The metalled road connects the house of the residents of the area and the sewerage pipeline, had been laid, on the berms of the said metalled road. The first appellate Court was, thus, right in holding, that since no area comprising rectangle No. 35, Khasra No. 3/1 and 4, had been used by the defendants, for laying the sewerage pipeline, the plaintiff/appellant could not say that his private land had been utilized by the defendants, for that purpose. The First Appellate Court was thus, right in holding that since the sewerage pipeline, had hot been laid, in the land Of the plaintiff/appellant, he had no locus standi, to file a suit for mandatory injunction for the removal of the same, which had been laid on the berms of the metalled road, being used by the public, at large for ingress and egress. The findings of the fact recorded by the first Appellate Court in this regard, being based on the correct appreciation of evidence, do not suffer from any illegality, or perversity and, therefore, warrant no interference.

No question of law much less substantial arises in this appeal for the determination of this Court.

For the reasons recorded above, the Regular Second Appeal, being devoid of merit, must fail and the same is dismissed.