Judgment N.K.Sud, J. 1. Municipal Committee, Sirsa has filed this second appeal against the order of the Additional District Judge, Sirsa, dated 14,9.1982 whereby the appeal of the respondent-plaintiffs against the judgment and decree passed by the Senior Sub Judge, Sirsa, dated 4.4.1981 has been allowed, 2. Respondents Moti Ram, Kanshi Ram and Prem Chand filed a suit for permanent injunction restraining the defendant-Municipal Committee from demolishing any portion of the house constructed by them on plot Nos. 44, 44-A and 47-A in the area known as Subhash Colony within the limits of the appellant-Municipal Committee in pursuance of its show cause notice dated 22.9.1976 (Exhibit P3). Respondents claim to have purchased the said plots through two sale deeds. The purchase through sale deed dated 1.8.1975 was in respect of plot N0.44-A (half portion) and plot No. 47-A from one Darshan Lal son of Parkash Chand. The second sale deed dated 11.7.1975 was in respect of plot No. 44-A (half portion) and plot No. 44 from one Mam Chand son of Raja Ram. The total area purchased was 378 sq. yards. A site plan for raising construction on the said plots was submitted which was sanctioned on 5.9.1975, a copy of which has been exhibited as Exhibit P1. Construction on an area measuring 54x63 is said to have been raised in accordance with the sanctioned plan. On 28.9.1976, respondents received a notice under Section 181 of the Haryana Municipal Act, 1973 (for short the Act) from the appellant-Municipal Committee informing them that they had encroached upon the municipal lands and that they should remove the encroachment within a period of one week failing which it would be removed at their expense. They considered the notice to be illegal and filed the suit for permanent injunction, 3. The suit was contested by the appellant-Municipal Committee. It was averred that the sanction to raise construction as per Exhibit P1 was subject to the condition that there would be no encroachment on the Municipal land and that in the event of any such encroachment, the permission was to be deemed to have declined. It was further averred that the land on which encroachment had been made fell in plots No. 45 and 46 of Subhash Colony which as per the sanctioned layout plan of the Colony had been kept reserved for a Municipal Park. 4. It was further averred that the land on which encroachment had been made fell in plots No. 45 and 46 of Subhash Colony which as per the sanctioned layout plan of the Colony had been kept reserved for a Municipal Park. 4. On the basis of the pleadings of the parties, following issue were framed:- 1. Whether house shown as ABCD on the site plan appended to the plaint was constructed by the plaintiffs as per sanction dated 5.9.1975 of the Municipal Committee, and if not to what effect? OPP 2. Whether the notice served by the defendant Municipal committee on the plaintiffs on 28.9.1976 is illegal and not enforceable? OPP 3. Whether the plaintiff have made encroachment on the land left for Municipal Park falling in plots No. 45 and 46 and as such the sanction granted stands automatically cancelled? OPD 4. Whether the plaintiffs have no cause of action? OPD 5. Relief. 5. Issues No. 1 and were considered together. The trial Court found that the land is situated in Subhash Colony (also known as Nand Lal Colony) which fell within the area of the Municipal Committee. The layout plan of this colony as approved by the defendant-Municipal Committee is Ex.D1 and was sanctioned in terms of resolution No. 65 dated 30.9.1969 (Exhibit D2). As per this resolution, the sanction was subject to the condition that four plots in the Subhash Colony are left for a Municipal Park. In accordance with this resolution the lay-out plan (Exhibit D1) was submitted in which plots No. 45, 46, 72 and 73 were earmarked for the purpose of the Municipal Park. On Exhibit D1 sanction was recorded on 15.10.1969 in the following terms:- "Sanctioned vide Resolution No. 65 dated 30.9.1969." 6 The trial Court also perused from the record of the Municipal Committee and found that there was a writing on behalf of the owner agreeing to leave four plots as Municipal Park. It was also noticed as per the approved plan of the Colony (Exhibit D1), there were no plots bearing No. 44-A and 47-A which the respondents claim to have purchased. The trial court observed that the sale of such plots to the plaintiff-respondents was meaningless as no titles in such non-existent plots could be passed. It was also noticed as per the approved plan of the Colony (Exhibit D1), there were no plots bearing No. 44-A and 47-A which the respondents claim to have purchased. The trial court observed that the sale of such plots to the plaintiff-respondents was meaningless as no titles in such non-existent plots could be passed. It was also observed that if the plaintiffs had purchased the plots in a bona fide manner under the impression that such plots existed as per plan, their remedy lay elsewhere. It was, therefore, held that the plaintiff-respondents could not be granted injunction merely on the ground that they had purchased the plots in a bona fide manner and got the site plan for construction approved from the Municipal Committee. It was further held that plots No. 45 and 46 vested in the Municipal Committee for the purpose of the Municipal Park as per the sanction of the lay-out plan and thus the respondents could not derive any benefit from the fact that the site plan had been sanctioned by the Municipal Committee as the sanction was clearly conditional being subject to the respondents not encroaching on the Municipal land. Thus once it was found that the respondents had encroached upon plots No. 45 and 46 which vested in the Municipal Committee, the sanction became automatically in-operative and void. In view of this, both the issues were decided against the respondent-plaintiffs and in favour of the defendant-Municipal Committee. As a consequence thereof issue No. 3 was also decided against the respondent-plaintiffs. 7. Respondents preferred an appeal before the Additional District Judge, Sirsa, who, vide order dated 14.9.1982, has allowed the same. The lower Appellate court held that even though the sanction for construction was conditional, the condition became meaningless because the location of the plot had duly been described in the plan which showed plot No. 45 in the West, plot No. 44 in the East, plots No. 74 and 74-A in the North and a street in the South, It was, therefore, observed that while approving the plan for construction, the Municipal Committee may not have examined the title of the respondents, but it must have examined its own title in the property on which construction was approved. Thus, it was held that the defendant-Committee could not, on one hand, allow the plaintiff-respondents to raise the construction over the plot in question and on the other hand ask them to demolish the same without payment of compensation, It further held that mere fact the lay-our plan of Subhash Colony (Exhibit D1) as sanctioned subject to leaving of four plots for raising a Park, did not tantamount to acceptance of this condition by the owner. It brushed aside the finding of the trial Court that there was a writing in the Municipal records on behalf of the owner agreeing to leave four plots in the Colony for a Municipal Park by observing that no such record was produced before him. The lower Appellate court further held that the four plots kept re-served for the Municipal Park in the sanctioned lay-out plan did not vest in the Municipal Committee as it did not fall in any of the categories of properties specified in Section 61(1) of the Act. He, therefore, held that on this ground also the Municipal Committee was not competent to issue the impugned notice for removal of the encroachment from plots No. 45 and 46. 8. Mr. Dinesh Nagar appeared on behalf of the Municipal Committee and supported the reasoning given by the trial Court whereas Mr. D.N. Ganeriwala appearing on behalf of the respondents supported the order of the lower Appellate Court. 9. After hearing the Counsel for the parties and after perusing the impugned orders as also the record of the case, I am of the view that the findings of the lower Appellate Court are not only against the record, but also based on misinterpretation of the provisions of Section 61 of the Act. It has not even kept in view the issues which had been framed on the pleadings of the parties and has travelled beyond the pleadings. It has totally overlooked the fact that there was no issue raised about plots Nos. 45 and 46 not vesting in the Municipal Committee. In fact a plain reading of issue No. 3 clearly indicates that it was not in dispute that plots No. 45 and 46 had been left in the lay-out plan for a Municipal Park. Again there was no dispute about the sanction of the lay-out plan being subject to leaving four plots by the owner for the purpose of Municipal Park. Again there was no dispute about the sanction of the lay-out plan being subject to leaving four plots by the owner for the purpose of Municipal Park. 10. Even otherwise, the findings of the lower Appellate Court are totally erroneous, A perusal of Exhibit P1 which is the approved plan on the basis of which construction was carried out, does not mentioned plot number on which construction was proposed to be carried out. The respondents claimed to have purchased plots No. 44, 44-A and 47-A, but it is not understood as to why the same were not mentioned on the proposed plan submitted for construction thereon. The only inference that can be drawn from this is that plot number was intentionally withheld from the Municipal Committee to avoid detection of the fact that there were no such plot as per the sanctioned lay-out plan of the Colony. Further the trial Court has rightly held that the sanction of the she plan was subject to the condition that there would be no encroachment on the Municipal land and that if any such encroachment was made, the permission was to be deemed to have been declined. At any rate, no sanction had been granted for any construction on plots No. 45 and 46 of Subhash Colony from which the removal of encroachment was being sought. 11. Thus the limited question for consideration was as to whether the respondents could seek an injunction restraining the Municipal Committee to order removal of en croachment on plots No. 45 and 46. The respondents have not proved that they had purchased these plots or had got any plan sanctioned for construction thereon. Thus they cannot resist the action of the Municipal Committee in seeking to remove encroachment on these plots. 12. Interestingly the respondents have not specifically denied encroachment in the area falling in plots No. 45 and 46. A reference in this behalf may be made to para 2 of the written statement filed by the defendant Municipal Committee and their response in the replication. Para 2 of the written statement is as under:- "In reply to para No. 2 of the plaint, it is submitted that it is correct that the sanction were granted on 5.9.1975, but it was subject to the condition that the plaintiffs would not make any encroachments or construct balcony etc. otherwise map would be deemed to have been rejected. Para 2 of the written statement is as under:- "In reply to para No. 2 of the plaint, it is submitted that it is correct that the sanction were granted on 5.9.1975, but it was subject to the condition that the plaintiffs would not make any encroachments or construct balcony etc. otherwise map would be deemed to have been rejected. As the plaintiffs made encroachments on land left for Municipal Park falling in plots 45 and 46, therefore the sanction granted stands automatically cancelled." The response of the respondents to this para in the replication is as under:- "That Para No. 2 of the written statement is wrong and that of the plaint is correct. The sanction granted to the plaintiff was not subject to any conditions as stated in this para. The plaintiffs have not made encroachment on any party of the Municipal area." 13 A perusal of the above shows that the respondents have plainly denied the fact that the sanction to the site plan Exhibit P1 was conditional. This denial stands falsified from the record which shows that sanction was granted by a stamped endorsement on Exhibit D1 which clearly mentioned the condition. Thus the respondents have made a misstatement that there was no condition attached with the aforesaid plan. In para 2 of the written statement, the encroachment was alleged on plots No. 45 and 46, whereas in the replication, denial was made qua Municipal area. A perusal of the record show that as per the typed paragraph 2 of the replication, it was stated that "the plaintiffs have not made encroachment on any part of the said plot." However, the words "said plot" have been struck off in hand and the words "Municipal area" have been added. Thus, it clearly shows that the respondents tried to evade the issue as they could not deny encroachment on plots Nos. 45 and 46. Thus it stands proved that the respondents have encroached upon plots No. 45 and 46 which had been left in the sanctioned lay-out plan for a Municipal Park. In view of this encroachment, construction could not be said to have been made as per sanction of the Municipal Committee because sanction was conditional and stood automatically revoked on the encroachment having been found. 14. In view of this encroachment, construction could not be said to have been made as per sanction of the Municipal Committee because sanction was conditional and stood automatically revoked on the encroachment having been found. 14. It is thus clear that there has been a concerted attempt by some individuals to usurp plots No. 45 and 46 reserved for a Municipal Park in a clandestine manner by selling the same as plots No. 44-A and 47-A. The respondents may or may not be part of this conspiracy. They claim that they had purchased the same in a bona fide manner and did not know that plots No. 44-A and 47-A did not exist in the sanctioned lay-out plan. It has been correctly observed by the trial Court that if that be so, their remedy lay somewhere else and not against the Municipal Committee. 15. I now proceed to examine the merits of the findings recorded by the lower Appellate Court. The finding of the lower Appellate Court that merely because in the sanctioned plan (Exhibit D1) of Subhash Colony, four plots had been left for a Municipal Park would not mean that the owner had agreed to this condition, is totally untenable. At the outset it may be noticed that the respondents had nowhere denied the fact that plots No. 45, 46, 72 and 73 had been kept reserved for a Municipal Park in the lay out plan of Subhash Colony as sanctioned by Municipal Committee. The plan had been sanctioned in terms of Resolution No. 65 dated 30.9.1969 which clearly indicates that the sanction was conditional on the applicant leaving four plots for a Municipal Park. It was in pursuance of this resolution that Exhibit D1 had been submitted showing plots No. 45, 46, 72 and 73 having been left for a Municipal Park. If this condition had not been accepted by the owner, there was no reason why he would submit the plan Exhibit D1 showing these plots as a Park. The finding of the Trial Court that there was a written consent on behalf of the owner in the Municipal record has been wrongly brushed aside. The Trial Court had clearly mentioned that it had verified this fact from the record. Further if the owner were to say that he had not accepted this condition, then entire colony becomes unauthorised because the sanction itself was conditional. The Trial Court had clearly mentioned that it had verified this fact from the record. Further if the owner were to say that he had not accepted this condition, then entire colony becomes unauthorised because the sanction itself was conditional. At any rate, the owner had not made any such grievance nor did this question arise out of the pleadings of the parties. The lower Appellate Court, therefore, was not justified in holding that there was no evidence to show that the owner had agreed to the aforesaid condition. 16. The lower Appellate Court has further erred in holding that plots No. 45 and 46 did not vest in the Municipal Committee in view of the provisions of Section 61 of the Act. At the outset, it may be mentioned that no such dispute arose from the pleadings of the parties nor had any such issue been framed, and, therefore, the lower Appellate Court could not have gone into this question on its own. Even otherwise, it has misread the Section to hold that the plots in question are not covered by any of the categories of properties mentioned in Section 61 of the Act to make these plots vest in the Municipal Committee. Section 61 of the Act reads as under;- "Property vested in Committee.- (1) Subject to any special reservation made or to any special conditions imposed by the State Government, all property of the nature hereinafter in this section specified and situated within the municipality, shall vest in and be under the control of the Committee and with all other property which has already vested or may hereafter vest in the Committee, shall be held and applied by it for the purpose of this Act, that to say;- a) all public town-walls, gates, markets, stalls, slaughter-houses, manure and night-soil depots and public buildings of every description which have been constructed or are maintained out of the municipal fund. b) all public streams, springs, and works for the supply, storage and distribution of water for public purposes, and all bridgs, buildings, engines, materials and things connected therewith or appertaining thereto and also any adjacent land, not being private property appertaining to any public tank or well; c) all public sewers and drains, and all sewers, drains culverts and water-courses in or under any public street, or constructed by or for the committee alongside any public street and all works, materials and things appertaining thereto; d) all dust, dirt, dung, ashes, refuge, animal matter or filth or rubbish of any kind or dead bodies of animals collected by the committee from the streets, houses, privies, sewers, cesspools or else where or deposited in places fixed by the committees under Section 152; e) all public lamps, lamp-posts, and apparatus connected therewith or appertaining thereto; f) all land or other property transferred to the committee by the State Government or acquired by gift, purchase or otherwise for local public purposes; g) all public streets, not being land owned by the State Government, and the pavements, stones and other materials thereof, and also trees growing on, and erections, materials, implements and things provided for such streets, 2) xxx xxx xxx xxx xxx" 17. The lower Appellate Court appears to have considered only property falling in Clause (a) to (g) of Section 61(1) to come to the conclusion that the plots are not covered by the provisions of this Section. A perusal of opening part of Sub-section (1) makes it absolutely clear that in addition to the properties described in Clauses (a) to (g), "all other property which has already vested or may hereafter vest in the committee" is also property vesting in Municipal Committee. In the present case, the lay out plan of Subhash Colony had been sanctioned on 15.10.1969 in terms of Resolution No. 65 dated 30.9.1969. Since the condition of leaving the four plots for a Municipal Park had been accepted by the owner in the plan submitted by him for sanction in which plots No. 45, 46, 72 and 73 were shown as Municipal Park, the said four plots vested in the Municipal Committee. Since the condition of leaving the four plots for a Municipal Park had been accepted by the owner in the plan submitted by him for sanction in which plots No. 45, 46, 72 and 73 were shown as Municipal Park, the said four plots vested in the Municipal Committee. Thus, it was a property which had already vested in the Committee when the Haryana Municipal Act, 1973 had come into force and was included in the definition of property described in Section 61 of the Act. 18. Thus in my considered opinion, the lower Appellate Court has erroneously re versed the well reasoned judgment of the trial Court on totally erroneous and unwarranted grounds. The impugned order of the lower Appellate Court, therefore, cannot be sustained. Accordingly, the appeal is allowed. The order of the lower Appellate Court dated 14.9.1982 is set aside and that of the trial Court is restored. The suit of plaintiff respondents is dismissed. No costs.