Smt. Bhagwani Devi vs Notified Area Committee

B. Rai, J.—Suit of Smt. Bhagwani Devi for permanent injunction against Notified Area Committee was decreed leaving the parties to bear their own costs, by the learned Subordinate Judge First Class, Mahendergarh, vide his judgment and decree, dated April 19, 1977, restraining the defendant from demolishing the Chabutra and sun shade of the house of plaintiff. It was made clear that the judgment shall not affect that rights of the defendant Municipal Committee for getting the encroachment removed if and when needed in any indiscriminate and general move of removal of encroachment from the Municipal road in question.

Feeling aggrieved, the Notified Area Committee preferred an appeal against the said judgment and decree. The learned Additional District Judge, Narnaul, heard the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff, vide his judgment and decree dated August 20, 1979.

Dissatisfied with the aforesaid judgment and decree of the first appellate Court, Bhagwani Devi has come to this Court by way of this Regular Second Appeal.

Facts are that Bhagwani Devi is owner in possession of the house fully described in para No. 1 of the plaint. She gave the boundaries as East, Pucca Road, West, House of plaintiff and common thoroughfare, North, House and shop of Thakur Mangaj Singh, South, House of Bhana Ram, Kumhar. It was alleged by her that she got the house constructed after getting its site plan approved on January 16, 1975 from the Municipal Committee Mahendergarh, vide its Resolution No. 13, and the construction was made in accordance with the approved site plan. It was further alleged that in the site plan, the position of the house and that of the Chabutara were shown by the plaintiff. The width of the Chabutra was IM-15 CM and length was 15M-30 CM. According to her, the Chabutra was already in existence in front of her old house. After the site plan was got approved, the Chabutra was made pucca one in place of old kacha one, and no encroachment was made on the Municipal land. The construction was completed in January, 1975. The Municipal Committee issued notice Exhibit D2 u/s 181(2) of the Haryana Municipal Act, 1973 (for short, the Act) asking the plaintiff to remove the Chabutara, on the allegation that the Chabutara was an encroachment on the Municipal land and that it was built without approval of the Municipal Committee. She pleaded that the Chabutara was neither encroachment on the Municipal land nor was it built without approval. On receipt of that notice, she filed a suit for permanent injunction restraining the defendant from taking action in pursuance of the notice issued to her u/s 181(2) of the Act.

The suit was contested by the Municipal Committee, inter alia, on the grounds that plaintiff had built the Chabutara without approval by encroaching upon some portion of the Municipal land and that land under the Chabutara vested in the Municipal Committee. The plaintiff had no concern with that land. The Chabutara having been built without approval and encroaching upon the Municipal land, the Municipal Committee has a right and authority to get that Chabutara demolished. It was further pleaded that several other Chabutaras which were made without approval and by way of encroachment on the public street were got removed by the Municipal Committee and there was no kacha Chabutara earlier. The pleadings of the parties gave rise to the following Issues:

1) Whether the plaintiff has constructed the Chabutara in dispute in her own land?

2) Whether the notice in dispute is null and void?

3) Whether the plaintiff has no cause of action to file the present suit?

4) Relief.

Issues 1 and 2 were taken up together and after considering the evidence led by the parties, both these Issues were decided in favour of the plaintiff. Under Issue No. 3, it was held that the Chabutara and the house belonged to the plaintiff. As such, she had cause of action to file the suit. In view of the findings on all the Issues, the suit of the plaintiff was decreed, vide judgment and decree, dated April 19, 1977. In appeal, after discussion the evidence on Issues 1 and 2, it appeared to the learned Additional District Judge, Narnaul, that findings given by the trial Court on Issue No 1l were conjectural and were set aside. Consequently, the appeal was accepted, the judgment and decree of the trial Judge were set aside and the suit of the plaintiff was dismissed, as mentioned in the earlier part of this judgment.

After having heard learned counsel for the appellant, going through the evidence on record and the judgments of the Courts below, I am of the view that the appeal outrightly deserves to be dismissed.

The learned counsel for the appellant has raised all the same contentions which were raised before the first appellate Court. It is specific case of the plaintiff-appellant that she is owner of the house and the Chabutara and that Chabutra was constructed by her after getting the site plan Exhibit P2 approved from the Municipal Committee, Mahendergarh vide its Resolution No. 13. According to her, earlier there was a kacha Chabutara in existence and after getting the site plan approved, a cemented Chabutara was constructed by her in place of old kacha Chabutara. It is well settled principle of civil law that the party who alleges something in his/her favour, the onus is on that party to prove the same.

The only question that arises for determination is, whether the plaintiff-appellant has been successful in proving that she is owner of the pucca Chabutara in place of old one which allegedly was constructed by her after getting the site plan Exhibit P2 approved from the Municipal Committee (Notified Area Committee). During the course of arguments, the learned counsel for the appellant felt tight to point out any evidence available on the record that Bhagwani Devi appellant was owner of the land on which she has allegedly constructed the pucca Chabutara in place of old one. I myself have carefully scrutinised the evidence and fail to find out any evidence to that effect. Therefore, obvious conclusion is that the appellant has badly failed to prove that she is the owner of the land on which the Chabutara in dispute exists. As depicted in the site plan Exhibit P2, there is a Municipal road on the Eastern side of the house of the land. In between the Western berm and the wall of the house of the appellant, there is a dotted line, but there is nothing to show as to what this dotted line indicates. In between the dotted line and the Eastern side of the wall of the house of the appellant, there is a street of 15M-30M all along. "Street" has been defined under clause (23) of sub-section (2) of Section 2 of the Act which reads as under:

"street" shall mean any road, footway, square, court, public park alley or passage, accessible whether permanently or temporarily to the public, and whether a thoroughfare or not; and shall include every vacant space notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon, and if it is used by any persons as a means of access to or from any public place or thoroughfare, whether such person be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid; and shall include also the drains or gutters therein, or on either side, and the land, whether covered or not by any pavement, verandah or other erection, up to the boundary of any abutting property not accessible to the public."

It is no doubt true that the site in dispute is a public street. It was for the Notified Area Committee to discharge that onus but in case the plaintiff-appellant who claims to be the owner of the site in dispute and fails to prove the same, presumption is that the site abutting the public street is part of that street. It cannot be disputed that all the streets along with the vacant sites on either side of the road do form part of the street which vests in the Notified Area Committee. In para No. 2 of the written statement, it was specifically pleaded by the defendant-respondent herein that the plaintiff has no connection with the site under Chabutara and that the Notified Area Committee was owner of the same. In view of this specific plea, the learned Additional District Judge rightly came to the conclusion that it cannot be said that the Committee did not assert its ownership over the suit site. It is not disputed that site plan Exhibit P2 was got approved by the appellant from the Notified Area Committee. In the site plan, it is nowhere indicated that appellant intended to construct a cemented Chabutara all along eastern wall of her house. Therefore, it can be said that Chabutara has been constructed after getting the site plan approved. A perusal of this site plan shows that there are two apertures opening in the eastern wall of the room in south-eastern corner of the house and it is nowhere indicated that any door or window opens towards the Municipal road. It is another circumstances which goes to show that the plaintiff has encroached upon the Municipal land. Therefore conclusion arrived at by the lower appellate Court is an obvious result of the evidence led by the parties, which is well founded. I do not find any ground to interfere with the same.

The appeal is without merit land is dismissed. No costs.