Rajkumar Sharma vs Nagar Palika Nigam

Rohit Arya, J.—This appeal by plaintiffs is directed against the judgment and decree dated 16/8/2007 in Civil Appeal No. 64-A/2006 confirming the judgment and decree dated 19/7/2006 in Civil Suit No. 64-A/2006. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Facts necessary for disposal of this appeal are in narrow compass. A house situated in Jinsi Nala No. 2, Khurjewala Mohalla, Gwalior is of the ownership and possession of plaintiffs. Three shops are constructed therein and there is a Chabutara of 3X33 ft. in front of the house. The aforesaid Chabutara is the suit property in the instant case. It is claimed that the aforesaid house was purchased by the plaintiffs'' father on 10/7/1967 and after their father''s death, plaintiffs acquired title thereof. The aforesaid suit property was constructed in the year 1972. At earlier point of time having apprehension of the same being demolished by defendant, plaintiffs filed suit for permanent injunction vide civil suit No. 43-A/1979. The same was decreed on 24/1/1985. Thereafter, there was no interference or apprehension as regards demolition of the aforesaid Chabutara, however, to the utter surprise of plaintiffs, on 31/12/2004 defendant since again attempted to demolish the same, instant suit was filed for declaration and permanent injunction.

Defendant filed written statement and denied the plaint allegations. It is inter alia submitted that no permission was accorded by the defendant/Corporation for raising Chabutara. In fact the Chabutara is being removed under anti-encroachment drive initiated by the defendant/Corporation to widen the public road in terms of directions issued by the Writ Court on 5/11/2004 in Writ Petition No. 2054/2004 and order dated 5/3/2003 in Writ Petition No. 310/1999. With the aforesaid pleadings, defendant prayed for dismissal of the suit.

On the aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. The trial court on critical evaluation of entire evidence on record, dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record. On perusal of plaint averments, first appellate court found that as per sale deed dated 10/7/1967 and the map attached thereto, no suit property was purchased and in 1972 when the house was constructed, this suit property (Chabutara) was not constructed. As is culled out from the averments made in the plaint, suit property in fact was constructed later on. In order to prove that the suit property is constructed within the area purchased by the plaintiffs, documents Ex. P/5 of Municipal Corporation and Ex. P/8 & Ex. P/9 judgment and decree passed in the earlier suit, were filed. However, upon perusal thereof, the first appellate court has found Ex. P/5 to be as regards certain application filed before the Corporation, however, the same does not bear stipulation as regards seeking permission for construction etc. There is no permission or sanctioned map by the Corporation on record justifying/establishing the assertion that the suit property was constructed in accordance with the sanctioned map. Upon perusal of the judgment and decree passed in the earlier suit, it is found that the suit property was not in question before the trial court and no decree was passed as regards the suit property in the earlier suit. Therefore, under such circumstances, when the suit property was not the part of sale deed dated 10/7/1967, the same was not constructed in the year 1972, but later on and there is no sanctioned map permitting construction of suit property. The earlier suit does not deal with the suit property and no mention of the suit property is found in the decree so passed. The first appellate court concurred with the findings of facts as regards the suit property was constructed later on after purchase of the same and the suit property is not covered with the earlier decree passed (supra). With the aforesaid findings, the first appellate court confirmed the judgment and decree passed by the trial court dismissing the suit.

During the course of arguments, it is submitted that the trial court did not properly consider the application filed by the plaintiffs under Order XXVI Rule 9 of CPC for demarcation of the plot. In the opinion of this Court, in view of the findings based upon the pleadings and evidence led by plaintiffs from paras 8 to 11, the plaintiffs have failed to establish that the suit property was part of sale deed dated 10/7/1967 and there is no mention of the suit property in the map claimed to have been sanctioned in 1972 pursuant to which the house was constructed. There is no sanctioned map on record permitting raising of suit property. The earlier judgment and decree does not deal with the suit property and therefore, no useful purpose would be served by seeking demarcation when the plaintiffs themselves failed to establish their claim over the same. Hence, no illegality was committed by the courts below while dismissing the application under Order XXVI Rule 9 of CPC.

Having gone through the impugned judgments of the courts below and evidence led by the parties, this Court is of the opinion that both the courts below have recorded concurrent findings of facts based on correct appreciation of oral and documentary evidence on record. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. Accordingly, the Second Appeal sans merits is hereby dismissed.