The President, Municipal Council and Another vs Hari Chand

V.S. Aggarwal, J.—By this common judgment both the- revision petitions namely Civil Revision Nos. 1110 of 1998 and 2926 of 1997 can be dispose of together.

Civil Revision No. 1110 of 1998 is directed against the judgment pronounced by the learned District Judge, Hoshiarpur dated 3.2.1998. By virtue of the impugned judgment, the learned District Judge restrained the Municipal Council, Hoshiarpur, from removing or demolishing the alleged encroachment on the street during pendency of the suit.

The relevant facts are that respondent-plaintiff filed a civil suit alleging that he had purchased the suit property from one Faqir Chand in 1973. He got a site plan sanctioned in 1975 and raised construction according to that site plan. There was an earlier litigation in which it had been held that plaintiff-respondent has raised construction after getting the site plan sanctioned from the Municipal Council. The Municipal Council Hoshiarpur has issued notice for removal of the encroachment. The respondent contended that he had not encroached upon any part of the street. It was prayed that petitioners should be restrained from demolishing any part of the construction so raised.

In the reply filed by the petitioners, the suit and the application seeking ad-interim injunction has been contested. It is alleged that the suit is barred by the principle of res-judicata. The site was stated to be 24'' wide street. The respondent has encroached upon the said street by 7'' When it was noticed, the matter was raised before the Public Grievances Committee. It found that there has been encroachment. Hence, the contemplated action.

In civil revision No. 2996 of 1997, the facts are identical but the learned District Judge has refused to grant the ad-interim injunction in favour of Avtar Chand.

The learned trial Court held that the respondent has encroached upon the street by T. There was earlier litigation in which the respondent was a party. It was held that it was 20'' wide street. Prima facie holding that there is an encroachment, ad-interim injunction was'' refused. An appeal was filed with the learned District Judge. The learned District Judge held that in another matter this court has already directed the status quo to be maintained. He further held that in the previous suit Sarwan Singh and Ors. v. Jaswant Singh, it had not been decided that passage is 20'' vide. It has simply been observed that it was the wish of the Municipal Council that passage of 20'' side should be left. The findings to the contrary of the learned trial Court was found to be incorrect. In these circumstances, it was held that respondent has a prima facie case.

As is apparent from what has been recorded above, the short question that comes up for consideration is as to if the respondent has encroached upon 20'' street. As per Municipal Council, Hoshiarpur, the encroachment is to the extent of 7''. As for present the attention of the Court was not drawn to the earlier litigation in which it was held that there was such an encroachment on the public street. The fact remains that construction is existing on the site for quite sometime. These questions indeed require evidence. At the same time, the Court is conscious of the fact that if there is encroachment on the street, it is improper and unfair. It should not be allowed to continue. As for the present since the construction is already existing for quite sometime and it is difficult to pin point that there is encroachment to the extent of 7'' on the street, it is necessary that respondent-petitioner should be put to terms. Thus, the petitioner for the present should be restrained from demolishing the said structure.

For the reasons, the revision petition is dismissed. But revision petition No. 2996 of 1997 is allowed. The Municipal Council is restrained from demolishing the structure during the pendency of the suit. It is directed that learned trial Court within one month will give two opportunities to the plaintiff to produce and conclude the evidence. Thereafter, another month should be given to the petitioner to produce and conclude the evidence. The trial be completed and judgment be pronounced by 31.8.1998. If the plaintiff does not produce and conclude the evidence as stated above, the ad-interim injunction would be vacated automatically.