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2002 DIGILAW 1325 (PNJ)

Amir Chand v. Ram Lal

2002-11-29

R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. This is a defendants appeal and has been directed against the judgment and decree dated 22.9.1979 passed by Addl, Distt. Judge, Sonepat who by affirming the judgment and decree, dated 29.4.1978 passed by the Sub Judge, 1st Class, Gohana dismissed the appeal of the defendant-appellants. 2. The pleadings of the parties can be summarised in the following manner:- Ram Lal plaintiff-respondent filed a Civil Suit for injunction against the defendant Remal Dass on 3.11.1973 praying that the defendant be restrained from raising any construction on the land marked as ABCDEF in the site plan EX.P5 as the disputed site is a part of public street and adjoins his residential house situated at Gohana. It was also alleged by the plaintiff that the defendant wanted to raise illegal construction over the disputed site which is a part of public street and, therefore, he should be restrained from raising any construction in the shape of a Chabutra. 3. Notice of the suit was given to the defendants and it was contested by him on the plea that he had been using the disputed site as a Chabutra of which he has become owner by way of adverse possession. From the pleadings of the parties, the learned trial court framed the following is-sues:- "1. Whether portion marked BCDEF in the site plan is part of public street? OPP. 2. Whether defendant has become the owner thereof by way of adverse possession? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Relief." An additional issue was also framed on 22.7.1977 as follows:- "What is the width of the street in dispute ? OPP" 4. The parties led oral and documentary evidence in support of their respective cases and at one point of time the suit of the plaintiff was dismissed. He filed an appeal and the case was remanded to the trial Court after framing the additional issue. This time the suit of the plaintiff was decreed by the trial court vide judgment and decree dated 219.4.1978 by holding under issue No. 1 that the disputed site form part of the public street. This issue was decided in favour of the plaintiff and against the defendant. This time the suit of the plaintiff was decreed by the trial court vide judgment and decree dated 219.4.1978 by holding under issue No. 1 that the disputed site form part of the public street. This issue was decided in favour of the plaintiff and against the defendant. Additional issue was decided in favour of the plaintiff and it was observed by the trial court that after the inspection of the site it is proved that the width of the street adjoining between the houses of the plaintiff and Sube Ram towards north-east of the house of Ram Ji Dass the width is 5 3/4 ft. and the width of the street adjoining the house of Remal Dass and Sube Ram is 10 ft. Under the additional issue the learned trial Court also held that the site in dispute denoted by the letters ABCDEF falling within that measurement as is clear from the perusal of the map Ex.P5. Finally, the suit of the plaintiff was decreed by the trial Court and the defendant was injuncted upon from raising any construction over the site in dispute. 5. The defendant was not satisfied with the judgment and decree of the trial Court, therefore, he filed an appeal before the First Appellate Court and the plaintiff also filed cross-objections. The first Appellate Court dismissed the appeal of the defendant as well as the cross-objections of the plaintiff. 6. Aggrieved by the judgment and decree of the first Appellate Court, the present appeal by the defendant. 7. I have heard Mr. C.B. Goel, Advocate on behalf of the appellants, Mr. Ashish Kapoor, Advocate on behalf of the respondent and with their assistance have gone through the records of the case. 8. The material point for determination under issue No. 1 is whether the disputed site marked ABCDEF forms part of the public street. It is a settled principle of law that question of fact cannot be determined in the second appeal. Be that as it may, as the appeal in this case has already been admitted, therefore, I have to decide it whether the disputed portion marked ABCEDF as shown in the site plan Ex.P5 forms part of the public street and is used as such or not. 9. Be that as it may, as the appeal in this case has already been admitted, therefore, I have to decide it whether the disputed portion marked ABCEDF as shown in the site plan Ex.P5 forms part of the public street and is used as such or not. 9. The learned counsel appearing on behalf of the appellants submitted that "public street" has been defined in Section 2(21) of the Haryana Municipal Act, 1973 and according to the definition, "public street" shall mean any street heretofore levelled, paved, metalled, channelled, sewered or repaired out or municipal or other public funds,unless before such work was carried out, there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied "or express consent of the proprietor or which under the provisions of Section 180, is declared by the committee to be, or under any other provision of this Act becomes, a public street. 10. On the contrary, the learned counsel for the respondent submitted that there is an ample evidence on the record to show that the disputed site is a part of the street and as such the defendant has no right to raise Chabutra at the disputed site. There is a merit in the contention raised by the learned counsel for the respondent. I am of the opinion that there is ample evidence on the record to show that the disputed lane has been used as lane as such by the residents of the locality. Firstly, there is a statement on record of PW2. Ram Lubhaya, an aged man of 75 years and PW3 Narain Dass, aged 55 years and PW4 Mohari Ram and PW3 Narain Dass, aged 55 years and PW4 Mohari Ram, aged 70 years, who have deposed with one voice that the land in question is a street and is situated on the eastern side of the house of the plaintiff. On the contrary, the evidence which has been produced by the defendant is totally not reliable. The testimony of DW1 Vasdev cannot be acted upon as he has admitted that there is no Chabutra of the defendant on the site in dispute. Similarly, DW Bansi Dhar is not a resident of the locality. On the contrary, the evidence which has been produced by the defendant is totally not reliable. The testimony of DW1 Vasdev cannot be acted upon as he has admitted that there is no Chabutra of the defendant on the site in dispute. Similarly, DW Bansi Dhar is not a resident of the locality. So much so, even from the statement of DW3 Ram Singh it stands proved that the disputed site is being used as a street by the residents of the locality without any obstruction Defendant Remal Dass also admits that the Municipal Sweeper cleans the street up to his house. Apart from this, the sale certificate of the property of the defendant which has been produced by the plaintiff as Ex.P2 along with the site plan would show that a Gali has been shown on the southern side. This sale certificate is binding upon the defendant and the onus in these circumstances lies upon the defendant to show that boundaries of the sale certificate and the site plan attached with the sale certificate were erroneous or it was erroneously issued by the Rehabilitation Authorities. A glance to the site plan Ex. P5 would further show that he disputed site denoted by letters ABCDEF is a part of the street. The street in the site plan runs from east to west and then from north to south. A comparison of the houses of plaintiff and defendant would indicate that if construction is allowed to be made on the disputed site. ABCEDF, the width of the street would be considerably reduced so as to make it not in the straight line. Thus the circumstances appearing at the site coupled with the oral and documentary evidence leave no manner of doubt that the disputed lane is a public land and as such the defendant has no right to raise any construction so as to create problem or hindrance for the benefit of the plaintiff or other residents of the locality. 11. There is no satisfactory evidence on the record that the defendant was in adverse possession. In order to constitute an adverse possession it was incumbent upon the defendant to show that he had acted in a hostile manner to the knowledge of the Committee and the alleged adverse possession must continue for a continuous period of 12 years without any interruption. In the absence of any evidence. In order to constitute an adverse possession it was incumbent upon the defendant to show that he had acted in a hostile manner to the knowledge of the Committee and the alleged adverse possession must continue for a continuous period of 12 years without any interruption. In the absence of any evidence. I am inclined to hold that the defendant has miserably failed to establish and discharge the onus on issue No.2. Thus, I am in agreement with the observations of the first Appellate Court that the disputed site forms a part of the public street which was being used as such by the residents of the locality. Therefore, the defendant has no business to raise Chabutra or any other construction vide which he may encroach upon the street for his personal benefit. 12. In this view of the matter, I am of the opinion that the suit of the plaintiff has been rightly decreed by the courts below. Thus there is no merit in this appeal and the same is hereby dismissed leaving the parties to bear their own costs.