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2002 DIGILAW 1043 (PNJ)

Lal Singh v. Municipality Adampur

2002-10-09

SATISH KUMAR MITTAL

body2002
Judgment Satish Kumar Mittal, J. 1. Lal Singh appellant, who is the plaintiff (hereinafter referred to as the plaintiff-appellant) filed the present Regular Second Appeal against the judgment of reversal passed by the learned Additional District Judge, Jalandhar vide which the judgment and decree passed by the trial Court was set aside and suit of the plaintiff-appellant for permanent injunction was dismissed. 2. The brief facts of the case are that on 7.1.1975 the plaintiff-appellant filed suit for permanent injunction restraining the Municipal Committee. Adampur (hereinafter referred to as the defendant-committee) from demolishing the construction raised by him over his own land shown in red colour in the site plan attached with the plaint. It was averred by the plaintiff-appellant that he had raised construction on his land in the year 1969 after getting the building plans sanctioned from the defendant-committee. In the year 1971, defendant-committee served notice upon the plaintiff-appellant to the effect that he had raised construction in violation of the building plans, but the said matter was compounded on payment of Rs. 50/- by him. Later on, a notice dated 6.9.1972 was issued by the defendant-committee to the plaintiff-appellant, alleging that he had made encroachment on the municipal land. The notice was replied by him, but the defendant-committee served another notice dated 3.2.1973 under Sections 172 and 220 of the Punjab Municipal Act4. (hereinafter referred to as the Act) directing the plaintiff-appellant to remove the alleged encroachment. The said notice is alleged to be illegal, arbitrary and without jurisdiction on the ground that the plaintiff-appellant had made no encroachment on the municipal land by raising construction in the year 1969 as the illegality committed by him was later on compounded by the defendant-committee. By making these averments, a prayer was made by the plaintiff-appellant that the defendant-committee be restrained from demolishing his construction, which he had raised on his own land. The defendant-committee contested the suit and filed written statement to the effect that the plaintiff-appellant had encroached upon its land by raising fresh construction. It was alleged that notices were issued to the plaintiff-appellant under Sections 172 and 220 of the Act because he had made encroachment of 660 square feet of the municipal land. The said encroachment was made by him by constructing boundary wall in the year 1972 after the matter was compounded. It was alleged that notices were issued to the plaintiff-appellant under Sections 172 and 220 of the Act because he had made encroachment of 660 square feet of the municipal land. The said encroachment was made by him by constructing boundary wall in the year 1972 after the matter was compounded. Therefore, it was prayed that the suit filed by the plaintiff-appellant is not maintainable and the same is liable to be dismissed. 3. The learned trial court decreed the suit of the plaintiff-appellant while holding that no fresh construction was raised by the plaintiff-appellant after the compounding of the matter, therefore, it could not be presumed that he had made any encroachment on the municipal land. The learned first appellate Court set aside the aforesaid judgment and decree passed by the learned trial court and dismissed the suit of the plaintiff-appellant after recording the following findings:- "Coming to the merits of the case the whole emphasis of the learned court was on this point as to when this wall was constructed and it came to this conclusion that its construction was done as pleaded by the plaintiff. But this could not be the end of the controversy. The main controversy was with regard to encroachment upon the municipal land. The plaintiff/respondent had come to the court with these definite allegations that he was owner of the disputed land but he did not produce any title-deed in support of his contention. Reliance was placed upon oral evidence only. Even jamabandi record was not produced and still the plaintiff wanted the court to hold that he was owner of the disputed site. In my opinion, he failed to discharge the burden of proof. Even he failed to shift the onus to the side of the Municipal Committee. That being so, he was unable to make out a case mat the notices issued by the Municipal Committee were illegal." 4. Shri Gur Rattan Pal Singh, learned counsel for the plaintiff-appellant submitted that the aforesaid finding recorded by the learned first appellate court is illegal as the same is without any basis. He submitted that once the matter was compounded the illegal encroachment, if any, was also compounded. The learned first appellate court did not record any valid reason while reversing the finding of the learned trial court. He submitted that once the matter was compounded the illegal encroachment, if any, was also compounded. The learned first appellate court did not record any valid reason while reversing the finding of the learned trial court. He also submitted that even if it is found that the plaintiff-appellant had illegally encroached upon some area of the municipal land, then he became owner of the same by way of adverse possession. 5. I have considered the submission made by learned counsel for the plaintiff-appellant and do not find any force in the same. It has been found as a fact by the learned first appellate court that the plaintiff-appellant had encroached upon the municipal land. This finding has been recorded on the basis of the statement made by D W. 1 Kultar Singh, Secretary, Municipal Committee, who also produced some documents on the record, which show that illegal encroachment made by the plaintiff-appellant. Contrary to that, the plaintiff-appellant did not produce any document of title showing that he is owner of the land, encroached upon by him. The contention of the learned counsel for the plaintiff-appellant that since the matter was compounded earlier by the defendant-committee, therefore, the illegal encroachment made by the plaintiff-appellant is also deemed to have been compounded, cannot be accepted. The compounding can only be done with regard to the illegalities committed by the plaintiff-appellant in raising construction in violation of the sanctioned building plans. Illegal encroachment made by a person can not be compounded under the Act. The plea of the plaintiff-appellant regarding adverse possession also cannot be accepted as an encroacher of the municipal land cannot claim adverse possession. Moreover, the judgment of the learned first appellant court is based on pure findings of facts and the same cannot be interfered by this Court in the Regular Second Appeal, even if they are grossly erroneous as held by the Honble Supreme Court in Pakeerappa Rai v. Seethamma Hengsu D by LRs & Ors. JT 2001 (5) 537. No substantial question of law is involved in the present appeal. 6. In view of the discussion made above. I find no force in the appeal filed by the plaintiff-appellant and the same is hereby dismissed with no order as to costs.