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Rajguru v. Mahender Singh & Ors - RSA-810-2005 [2006] RD-P&H 1577 (9 March 2006)

R.S.A. No.810 of 2005 1


R.S.A. No.810 of 2005

Date of Decision : March 7,2006

Rajguru V. Mahender Singh and others


Coram: Hon'ble Mr. Justice Viney Mittal

Present: Shri Umed Singh Gulia,Advocate, for the petitioner.

Shri R.K.Gupta, Advocate, for the respondents.

Viney Mittal,J.

Plaintiff No.2, Rajguru having concurrently lost before the two courts below has approached this court through the present regular second appeal. The aforesaid plaintiff along with two other persons filed a suit for permanent injunction against defendant, Mohinder Singh. It was claimed that the aforesaid plaintiffs are residents of Gohana and have constructed their houses adjacent to a Chauraha ( cross road). There was a open space MLPQ and a drain was constructed by the Municipal Committee in the year

1962. The said Chauraha had been levelled and metalled for about two decades by the State Government. Dirty water of the houses of the locality R.S.A. No.810 of 2005 2

flowed in the said drain. Defendant, Mahender Singh, intended to raise some construction of his shop at point PQRS but since the said construction was being raised in a public street, therefore, the said defendant had no right to raise the construction.

The defendant contested the suit. He denied that he was raising construction on any public road or public street or a public place. He specifically pleaded that the land in question belonged to him since the same was owned by him. It was also pleaded that earlier a civil suit had been filed by him against the Municipal Committee which had been decreed. In pursuance to the said decree, the defendant had been delivered the possession of the suit property on October 10,1997. Thereafter, he submitted the site plan to the Municipal Committee and after the sanction thereof had already completed construction of three shops prior to the filing of the suit. He specifically denied that there was any encroachment made by him in public property.

The learned trial Court held that suit was shown to be filed in a representative capacity but no leave of the Court had been sought by the plaintiffs under section 91 of the Code of Civil Procedure. Consequently, it was held that the suit filed by the plaintiff was not maintainable. It was held by the learned trial court that in an earlier litigation, the defendant had been held to be the owner of the suit property and had been delivered the possession by the Municipal Committee. He had raised the construction in the said land after getting the plan sanctioned from the Municipal Committee. Consequently, the suit filed by the plaintiff was dismissed by the trial court with special costs of Rs.1,000/-.

R.S.A. No.810 of 2005 3

Plaintiff No.2 chose to file an appeal. The learned first appellate Court reappraised the entire evidence. On such reappraisal, the learned first appellate Court also found that ownership of the defendant over the suit land was proved. In the earlier litigation he was held to be the owner of the suit property and in execution of the said decree, the possession had been delivered to him. It was specifically held that the land in question was not proved to be public street or public property. The learned first appellate court also held that the site plan had been got approved by the defendant from the Municipal Committee and he had raised construction after the aforesaid approval. However, the learned first appellate court waived the special costs imposed upon the plaintiffs. The appeal filed by plaintiff No.2 was, thus, dismissed by waiving of the said costs.

I have heard the learned counsel for the parties and have also gone through the record of the case.

The learned counsel for the appellant has argued that the defendant had no right to raise any construction upon the municipal land or upon the municipal drain. According to the learned counsel even the approval granted by the Municipal Committee could not be binding upon the residents. The learned counsel has vehemently argued that the suit filed by the plaintiffs could not have been dismissed by the two courts below.

Having given my thoughtful consideration to the aforesaid contentions of the learned counsel, I find that the present appeal is devoid of any merit. It is apparent from the findings recorded by the two Courts below that in the earlier litigation between defendant, Mahender Singh and the Municipal Committee, the site in question was held to be owned by R.S.A. No.810 of 2005 4

defendant, Mehender Singh. In execution of the said decree, possession was delivered to the defendant on October 10,1997. Thereafter, defendant got the site plan approved and raised construction of the shops in question thereafter. The learned counsel for the appellant has not been able to point out that the property in question was owned by the Municipal Committee, in any manner, or was a public property. The defendant having been held to be the owner of the suit property in the earlier litigation, it is not open to the plaintiffs now to claim that the suit property was a public property.

Nothing has been shown that the findings recorded by the courts below suffer from any infirmity or are contrary to the record.

No question of law, much less any substantial question of law, arises in the present appeal.


March 7,2006 ( Viney Mittal )

sks Judge


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