High Court of Punjab and Haryana, Chandigarh
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Harjit Singh v. Municipal Corporation, Jalandhar - RSA-856-1989  RD-P&H 9849 (3 November 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: 18.10.2006
Municipal Corporation, Jalandhar
CORAM:- Hon'ble Mr. Justice Uma Nath Singh.
Present: None for the appellant.
Mr.Rajiv Sharma, Advocate for
for the respondent
UMA NATH SINGH, J. (ORAL)
This judgment shall also dispose of connected RSA No.1123 of 1989 filed by the Municipal Corporation, Jalandhar, as both the appeals relate to the same suit property, although two separate appeals were filed before learned Additional District Judge, Jalandhar. Learned Additional District Judge by the impugned judgment dated 3.1.1989 has dismissed both the appeals.
The appellant in RSA No.856 of 1989 originating from the judgment in RCA No.13 of 1986, has challenged the judgment on the ground of title, whereas the Municipal Corporation has assailed the finding of learned Sub Judge, which was affirmed by learned Additional District Judge in respect of removal of encroachment, whereby the Municipal Corporation was restrained from removing the encroachment, but was given liberty to take recourse to law.
Brief facts of the case are that a suit was filed by Harjit Singh, RSA No.856 of 1989 2
appellant in RSA No.856 of 1989, that House No. EJ-355 with certain vacant piece of land was purchased by his grand father Basant Singh from one Hukam Chand in the year 1913. Eversince, they continued to be in possession of that land. The appellant has also constructed a toilet over that property on having received sanction of the plan from the Municipal Corporation. The trial Court on appreciation of evidence and particularly when the plaintiff-appellant could not lead a cogent evidence to establish his title over the land, except by the sale deed (Ex.P-1), has held that the suit property was not owned by the plaintiff-appellant. The said sale deed indicated that along with the house, a passage was also sold to Basant Singh by Hukam Chand, but necessary detail as to whether only the passage in question was also sold, was not available on record. On the other hand, the Municipal Corporation by preponderance of evidence including the extract from khasra register and other relevant record being file book (Ex.D-1) so also the oral evidence of Gurnam Singh (DW1) and Jit Ram (DW2) came to the conclusion that the title over the land vested with it. However, the trial Court in view of balance of convenience being in favour of the plaintiff held that the Municipal Corporation shall not remove encroachment forcibly, and rather it should take recourse to law.
I have carefully considered the pleadings and also perused the record, apart from hearing learned counsel for the Municipal Corporation.
These are old appeals of 1989 and learned counsel for private appellant Harjit Singh is not present. However, in view of the assistance rendered by learned counsel for the Municipal Corporation and from the perusal of the record, I hold that both the appeals are devoid of any merit. As there is total dearth of evidence, except the sale deed, which did not indicate the details RSA No.856 of 1989 3
of the property sold by Hukam Chand to Basant Singh and as it did not point out that the property in question alone was the passage sold by the said sale deed, I do not find any material to hold that learned courts below have wrongly held by appreciating evidence that the Municipal Corporation, Jalandhar, has title over the suit property. As regards removal of encroachment, in view of continuous possession of the private appellant and balance of convenience being in his favour, learned Courts below have rightly held that the Municipal Corporation should have taken recourse to the provisions of relevant law for removal of encroachment. Needless to say that in terms of Section 173 of the Punjab Municipal Act, 1911 and the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, Municipal Corporation can institute the proceedings for vacation of the premises. By passing the impugned judgment and decree, the Court below have not closed the option for removal of encroachment. Further, the parties have also not framed any substantial questions of law. Moreover, in view of the position discussed hereinabove, this case does not involve any such question for adjudication in the second appeal. It is only a question of fact, based on evidence, which has been rightly decided by the Courts below.
Hence, both the appeals, being devoid of merit, are hereby dismissed. However, there is no order as to costs.
October 18, 2006 ( UMA NATH SINGH )
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