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PIARE LAL & ORS. versus MUNICIPAL COUNCIL, FARIDKOT & ANR.

High Court of Punjab and Haryana, Chandigarh

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Piare Lal & Ors. v. Municipal Council, Faridkot & Anr. - CR-1819-2006 [2006] RD-P&H 2638 (26 April 2006)

Civil Revision No.,1819 of 2006.

In the High Court of Punjab and Haryana at Chandigarh.

Date of decision:3.4.2006.

Piare Lal and others.

...Petitioners.

Versus

Municipal Council, Faridkot and another.

...Respondent.

...

Coram: Hon'ble Mr. Justice S. N. Aggarwal.

...

Present: Mr.Avnish Mittal Advocate for the appellants.

Mr.Rakesh Garg, Advocate for the respondents.

...

Judgment.

S. N. Aggarwal, J.

The petitioners filed suit for permanent injunction. They alleged that they were owners in possession of the suit property and apprehended their forcible dispossession at the hands of the defendants (respondents herein). An application for interim stay was also filed. The learned trial Court found the petitioners to be in possession of suit property and directed the parties to maintain status quo vide order dated 9.1.2006. The respondents filed an appeal which was accepted by the learned Lower Appellate Court vide order dated 21.3.2006. It was held that the petitioners do not have a prima-facie case as the suit property was a part of public street.

Hence the present petition.

Civil Revision No.,1819 of 2006.

The submission of learned counsel for the petitioners was that admittedly the petitioners were in possession of suit property and a tin shed was erected on it. It is a matter of evidence whether the suit property was a part of public street or not as alleged by the respondents. Therefore, the possession of the petitioners over the suit property be protected. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as Rame Gowda (D) by Lrs.Versus Mr.Varadappa Naidu (D) by Lrs.and another, 2004(1) RCR (Civil) 518.

This submission was controverted by the learned counsel for the respondents on the premises that the petitioners are to make out a prima-facie case in their favour before the stay order is granted to them. In the present case, the petitioners have failed to make out a prima-facie case for the following reasons:-

(i) The petitioners claim right over the suit property on the basis of agreement of sale dated 9.12.2005 allegedly executed in their favour by one Gurtej Singh. It means,therefore, that neither the petitioners are the owners nor the tenants. They base their claim only on the basis of alleged agreement dated 9.12.2005.

(ii) No document on the file has been placed to prove if Gurtej Singh had anything to do with the suit property. Since Gurtej Singh had no right, prima-facie, he could not pass on any valid title, right or interest in the suit property in favour of the petitioners.

(iii) Admittedly, the petitioners have built their adjoining house after purchasing the property from one Surjit Kaur vide sale deed dated 7.1.2002 and in the said sale deed, it was Civil Revision No.,1819 of 2006.

specifically mentioned that on the eastern side of their house is the public street. The site in dispute is on the eastern side of the house of the petitioners. Prima-facie, therefore, it is a part of public street.

(iv) In this sale deed dated 7.1.2002, it is not mentioned that any land is owned by Gurtej Singh on the eastern side of the house of the petitioners.

(vi) Local Commissioner was appointed by the Courts below who has also reported that the suit property was a part of public street.

From the above discussion, therefore, it is clearly made out that the site in dispute was a part of the public street. Prima-facie Gurtej Singh had no right,title or interest in it. Therefore, he could not pass on any better right, title or interest to the petitioners by executing any agreement of sale in their favour.

The judgment relied upon by the learned counsel for the petitioners also does not help them. No doubt it is held in this judgment that stay can be granted even against a true owner but for that purpose, possession should be settled possession. The settled position has been defined by the Hon'ble Supreme Court in Rame Gowda's case (supra) as under:- "The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and res-instate himself provided he does not Civil Revision No.,1819 of 2006.

use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.,'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession.

The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession."

So far as the present case is concerned, the petitioners allegedly came in possession on the basis of an agreement of sale dated 9.12.2005.

Therefore, it cannot be called to be a long possession or a settled possession and on the basis of the judgment relied upon by the learned counsel for the petitioners, no stay can be granted in their favour.

Otherwise also, the respondents are taking steps to dispossess the petitioners in accordance with law as has been noticed by the learned Lower Appellate Court. The respondents have served a notice under Section 195 of the Punjab Municipal Act on the petitioners to get possession of the petitioners on a part of the public street vacated which has been prima-facie Civil Revision No.,1819 of 2006.

encroached upon by them.

In view of discussion held above, I find no merit in the present petition and the same is dismissed.

However, nothing said in this case would affect the merits of the case.

April 3,2006. ( S. N. Aggarwal )

Jaggi Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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