Municipal Committee, Through Its Administrator v. Deva Ram
2003-08-27
VINEY MITTAL
body2003
DigiLaw.ai
Judgment Viney Mittal, J. 1. The defendant-Municipal Committee is in appeal. A suit for permanent injunction was filed by plaintiff Deva Ram. It was claimed that he was owner in possession of the house described in the plaint. There is a Chabutra in front of the said house. The plaintiff claimed to be owner in possession of Chabutra as well. He claimed that he had secured approval of defendant-Municipal Committee for the construction of aforesaid Chabutra in the year 1963 which exists at the spot since times immoral even prior to the purchase of his property from the Custodian. The defendant-Committee had issued a notice under Section 235 of the Haryana Municipal Act vide which the plaintiff was asked to remove the aforesaid Chabutra. Accordingly, the plaintiff brought the suit to challenge the aforesaid notice and seek an injunction against the defendant-Committee from demolishing the said Chabutra. 2. The defendant had contested the suit. It was claimed that the plaintiff was not the owner of the Chabutra in any manner and the aforesaid Chabutra had been constructed by way of an encroachment on the public street belonging to the Municipal Committee. It was also denied that the Chabutra had ever been raised by the plaintiff after obtaining any approval from the Municipal Committee. Various other pleas for contesting the suit were also taken. 3. The learned trial Court dismissed the suit filed by the plaintiff. 4. The matter was taken up in appeal. 5. The learned first Appellate Court re-appraised the entire evidence and on such reappraisal, it came to the following conclusions:- (1) That the plaintiff has successfully proved himself to be owner in possession of the Chabutra marked ABCD. (2) That the plaintiff had not got his plan Exhibit A1 sanctioned from the defendant-Municipal Committee by mis-representation; (3) That the impugned notice dated 16.5.1979 does not fulfil the requirement of Section 235 of the Act and therefore, was illegal.
(2) That the plaintiff had not got his plan Exhibit A1 sanctioned from the defendant-Municipal Committee by mis-representation; (3) That the impugned notice dated 16.5.1979 does not fulfil the requirement of Section 235 of the Act and therefore, was illegal. However, the defendant is not debarred from proceeding afresh against the plaintiff if permissible under the law; (4) In view of the statement of learned counsel for the defendant copy whereof is Exhibit PW7/A, the defendant is estopped by its own conduct from demolishing the Chabutra in dispute; (5) That the notice dated 16.5.1979 was illegal and that although the judgment dated 5.11.1975 passed by Shri N.K.Jain, Sub Judge, Gurgaon copy whereof is Exhibit P7, is not between the parties to the present suit, yet through this judgment the Civil Court had recorded a firm finding that Deva Ram was owner in possession of the Chabutra in dispute and it did not form part of the public street. The said finding of the Civil Court read with my finding recorded under issue No. 1 is binding upon the defendant also." 6. On the basis of aforesaid findings, the learned first Appellate Court reversed the judgment of learned trial Court and decreed the suit filed by the plaintiff. 7. The defendant-Committee has now felt aggrieved and has approached this Court by way of present Regular Second Appeal. 8. I have heard Shri Dinesh Nagar, learned counsel appearing for the appellant and with his assistance gone through the record of the case. 9. In my considered view, there is no merit in the present appeal and the same deserves to be dismissed. 10. On the basis of aforesaid evidence led by the parties, a firm finding of fact has been recorded that the plaintiff has successfully proved himself to be the owne/ in possession of the Chabutra marked ABCD. The said Chabutra had been duly sanctioned by the defendant-Committee. There was no mis-representation made by the plaintiff in securing the aforesaid sanction. In an earlier judgment Exhibit P7 between the plaintiff and one Ram Chander, it had been held that Deva Ram (defendant therein) was owner in possession of the Chabutra. Although the defendant-Municipal Committee was not a party to the aforesaid suit but all the same the said judgment at least is a piece of evidence for showing the possession and ownership of the plaintiff. 11.
Although the defendant-Municipal Committee was not a party to the aforesaid suit but all the same the said judgment at least is a piece of evidence for showing the possession and ownership of the plaintiff. 11. The aforesaid findings recorded by the learned fists Appellate Court are findings of fact. Nothing has been shown that the said findings, in any manner, are contrary to the record or are based upon mis-reading or non-reading of important evidence. 12. No question of law, much less any substantial question of law, arises in the present appeal. 13. In view of aforesaid discussion, the present appeal is without merit and is dismissed. There shall be no order as to costs.