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2014 DIGILAW 1678 (PNJ)

M. C. Jalandhar v. Deewan Chand

2014-12-03

SHEKHER DHAWAN

body2014
Dr. Shekher Dhawan, J. 1. This Regular Second Appeal is directed against judgment and decree dated 10.05.1988 passed by the Court of learned Additional District Judge, Jalandhar whereby appeal filed by the appellant-plaintiff against the judgment and decree dated 04.11.1986 passed by the learned Sub Judge, 1st Class, Jalandhar was accepted. For convenience sake, hereinafter, reference to parties is being made as per their status in civil suit. 2. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the plaintiff had filed suit for permanent injunction restraining the Municipal Corporation Jalandhar from demolishing the construction shown in red colour of property No. BXXXVIII-734 situated in Bhargava Camp, Jalandhar City. As per plaintiff, he had purchased said house from the Rehabilitation Department. The structure shown in red colour in the site plan has been in existence since 1972 and the plaintiff had been using the same for his residential purpose. Later on, the defendant-Corporation started asserting that the plaintiff had encroached on a part of the public street to the extent of North 23'-6", South 16'-2", East 33' and West 33'-2" whereas in fact there is no public street on the spot. The said land belongs to the plaintiff and is part and parcel of his house. The defendant also served a legal notice to demolish the disputed construction and the said notice is illegal, null and void and liable to be struck down. 3. The case of the defendant-Corporation is that the disputed site is part of the public street and the plaintiff had raised a construction on the same by constructing boundary wall and two rooms. Notice was served upon the plaintiff. The jurisdiction of the Civil Court was also challenged and the defendant prayed that the suit be dismissed. 4. On these facts, learned trial Court settled the following issues and the parties were put to trial: "1. Whether the plaintiff in possession of the property in dispute for the last about 12 years? OPP 2. Whether the property in dispute is public street vesting in Municipal Corporation, Jalandhar? OPD 3. Whether issue No. 2 is proved, whether notice dated 22.12.85, served upon the plaintiff by the defendant is illegal and without jurisdiction? OPP 4. Whether the plaintiff in possession of the property in dispute for the last about 12 years? OPP 2. Whether the property in dispute is public street vesting in Municipal Corporation, Jalandhar? OPD 3. Whether issue No. 2 is proved, whether notice dated 22.12.85, served upon the plaintiff by the defendant is illegal and without jurisdiction? OPP 4. Whether the Civil Court has got no jurisdiction to try the present suit? OPD 5. Whether the plaintiff is entitled to the injunction prayed for? OPP 6. Relief." Both the parties led their respective evidence. 5. On the basis of material and evidence available on file, learned trial Judge decided issues No. 1 to 3 against the plaintiff. Issues No. 4 and 5 were also decided against the plaintiff and consequently the suit of the plaintiff was dismissed. 6. The plaintiff challenged the said findings recorded in the judgment and decree by the learned trial Judge before the learned Additional District Judge, Jalandhar and the learned Additional District Judge, Jalandhar reversed the findings of learned trial Court on Issues No. 1 to 3 and accepted the appeal and decreed the suit of the plaintiff against the defendant-respondent by way of injunction restraining the Municipal Corporation from interfering in the peaceful possession of property in question and the defendant-Corporation was restrained from demolishing the construction shown in red colour in the plan Exhibit P-1. 7. Being aggrieved of passing of said judgment and decree dated 10.05.1988, this is the second Regular Second Appeal before this Court. 8. When the appeal was admitted, no substantial question of law was framed. Even no substantial question of law has been placed on record during the pendency of appeal. However, at the time of arguments, learned counsel for the appellants has submitted that following substantial question of law is involved in this second appeal for consideration by this Court: "Whether this Court has got jurisdiction to decide the matter in view of provisions of the Punjab Municipal Corporation Act, 1976 or in the alternative remedy of appeal was to be availed." 9. I have heard learned counsel for the parties and perused the record. 10. I have heard learned counsel for the parties and perused the record. 10. Learned counsel for the appellant mainly took the plea that the main dispute is whether the plaintiff made encroachment on a public passage belonging to Municipal Corporation or in the alternative whether suit land is owned and possessed by the plaintiff as he had purchased the same from the Rehabilitation Department. As per learned counsel for the appellant, as per provisions of Section 269(2) of the Punjab Municipal Corporation Act, 1976 (hereinafter referred to as 'the Act'), the only remedy as per law was to prefer an appeal before the learned District Judge but that has not been done. The same is reproduced as under: "269(2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the Court of the District Judge of the City within the period specified in the order for the demolition of the erection or work to which it relates." 11. Learned counsel for the appellant urged that the suit for permanent in junction is not maintainable because admittedly the Municipal Corporation had issued legal notice under the Act. Specific issue No. 3 was framed by the learned trial Court in this regard and the findings are in para No. 15 of the trial Court. The same has resulted into erroneous findings by the learned Additional District Judge, Jalandhar while deciding the first appeal and the same are liable to be reversed and the appeal be accepted and suit of the plaintiff be dismissed. 12. While arguing on these points, learned counsel for the respondent took the plea that no notice was issued by D.W.-3, as rightly observed by the learned Additional District Judge, Jalandhar while recording the findings. More so, it was for the Municipal Corporation to prove that the encroachment was on public street but that has not been done in any way. To the contrary, the plaintiff has been able to prove that he had purchased the suit property vide Exhibit P-7 and the land was transferred by the Rehabilitation Department. Only thereafter, the plaintiff had raised the construction of his house on the same. Since then, the plaintiff had been paying the taxes to the Municipal Corporation. To the contrary, the plaintiff has been able to prove that he had purchased the suit property vide Exhibit P-7 and the land was transferred by the Rehabilitation Department. Only thereafter, the plaintiff had raised the construction of his house on the same. Since then, the plaintiff had been paying the taxes to the Municipal Corporation. As per learned counsel for the respondent, it is a matter of common knowledge that the Municipal Corporation accepts tax only from the owner and unless the plaintiff proved to be owner, there was no occasion left for the Municipal Corporation to accept the amount of tax from the plaintiff. 13. I have given thoughtful consideration to the arguments advanced by learned counsel for both the parties. 14. In the case in hand, the findings of the fact have been recorded by the Lower Appellate Court on the basis of available evidence and the findings given by the Court of first instance have been reversed. As a matter of fact, the appellant in the instant appeal wants to challenge the pure findings of fact which cannot be allowed by this Court in this Second appeal under Section 100 C.P.C. The finding with regard to possession is pure finding of fact and cannot be interfered with in the second appeal. In this regard, reliance can be placed upon Shankar Sidduba (D) By L.Rs. v. Ratna Bai, JT 2002 (5) SC 378 wherein it has been held as under:-- "6. When the courts below had concurrently taken the view on the question of fact particularly who was in possession of the suit land in question, we do not think the High Court was justified in side-tracking that aspect of the matter and examine other aspects and give a finding in favour of the respondent. We set aside the order made by the High Court and restore that of the first appellate court affirming the decree made by the trial court dismissing the suit." 15. Otherwise, in this case, learned Additional District Judge has rightly observed that the street was earlier 26 feet and that increased subsequently 69 feet and the size and location of the plot itself establish that the same is in fact not a public street rather the same is a plot which the plaintiff had purchased from the Rehabilitation Department vide Exhibit P-7. The case of appellant is that had there been encroachment of public street by way of construction of two rooms and boundary wall that would not have gone unnoticed by the field officers of the Corporation earlier. For appreciation of facts in proper manner, the plaintiff had moved an application for appointment of Local Commissioner but the same was not accepted. At any rate, there is no substantial question of law involved in this case and it is a pure question of facts. Learned counsel for the appellant has failed to show that findings of fact recorded by the lower Appellate Court are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal. Consequently, said findings recorded by the lower Appellate Court do not warrant interference in this second appeal. No other point has been urged. Dismissed. Costs made easy.