Madhya Pradesh High Court
Ramswarup Tripathi vs City Administrator, Gwalior, Office Of ... on 20 January, 1987
Equivalent citations: AIR1988MP264, AIR 1988 MADHYA PRADESH 264, (1988) MPLJ 333
JUDGMENT T.N. Singh, J.
1. The suit was for permanent injunction and declaration of title. Two Courts have dismissed the suit in toto. The plaintiff has appealed seriously contesting the validity of the decisions rendered by the Courts below.
2. Plaintiffs counsel, Shri Agrawal, submits that the plaintiff had duty proved his title to suit property, a Chabutara measuring 2.10 Mtrs. in breadth and 4.70 Mtrs. in length as per plaint-map. Ex. P 1 is a registered sale-deed to which is also annexed a map in which the Chabutara is shown but without measurements. The sale-deed is dt. 6-4-1968. The plaintiff came with the suit after the Corporation, who figures in this case as the defendant/ respondent, sought to demolish the Chabutara on 21-11-1975. It is admitted that a part of the Chabutara was damaged, albeit in plaintiffs absence. The plaintiffs case is that Corporation had no right to dispossess the plaintiff from the Chabutara and to damage the same for which he claimed Rs. 100/- as compensation in addition to declaration of his title thereto and permanent injunction restraining the defendant from making further attempt to dispossess therefrom the plaintiff. The case of the Corporation was that the land occupied by the chabutara was part of a street which was occupied by the plaintiff.
3. The plaintiff examined himself and one witness in support of his case while the defendan-Corporation examined an Overseer and an Engineer. However, both courts below dismissed the suit on the same ground that the plaintiff failed to prove his title. This mding was reached on the ground that the plaintiff had failed to examine his vendor. Both Courts ignored and overlooked the fact that in the document of title of the plaintiff, namely, the sale-deed and the map annexed to it, Chabutara was duly shown and that its existence atleast from 1968 was duly established
4. The contention of learned counsel for the plaintiff/appellant is that in no view of the matter, the view could be dismissed in toto on the finding and conclusion reached Because plaintiff was found tobeinpossession of the Chabutara and the land on which it stood, on the basis of his possessory title his possession ought to have been protected Reliance was placed for this proposition on the decision in Nair Service Society, AIR 1968 SC 1165. Counsel's contention is also that the special plea which the defendant took not having been substantiated and proved, relief could not be denied to the plaintiff.
5. Counsel has relied on a decision of this Court reported in Dharam Chand 1972 Jab LJ(SN) 109 and also on an unreported decision of this Court in the case of Laxman Singh, Second Appeal No. 107 of 1985, decided on 16-10-1986. Definition of the term "Street", appearing in Section 5(55) of the M. P. Municipal Corporation Act, 1956, for short, the Act, was considered by me in Laxman Singh's case. I had also the occasion to consider the provisions of Sections 82 and 83 of the Act, The term "Street" is defined as a road, foot-way, square, court, alley or passage, accessible, whether permanently or temporarily, to the public. However, a piece of "vacant space" is also included in the definition of the term "Street" under certain circumstances.
6. That the Chabutara was not a "vacant space" but there was construction on it which had a standing of over seven years, is a fact which could not be disputed in this case. However, it has also not been proved by evidence of any member of the public that there existed at any time a street or passage extending on, up to or beyond the Chabutara in question. The two witnesses examined by the defendant/Corporation merely proved on the other hand, that demolition of the Chabutara was undertaken, but the work remained.unfinished. It is also their evidence that they did not know when the Chabutara was constructed, but they said that the plaintiff had erected the Chabutara illegally without the permission of the Corporation. In Dharam Chand (supra) as also in Laxman Singh (supra), the view taken was that if any property was claimed by the Corporation as its property or that such property vested in the Corporation, such as a, "street", it was the duty of the Corporation, as contemplated under Section 83, to produce the "Register and the Map" in support of the claim laid. Admittedly, in this case that has not been done.
7. It is the contention of Shri Agrawal that the defendant Corporation has not discharged itsstatutory duty inscribed in Section 83 and its claim is not maintainable in law. Indeed the defendant not having proved its title to the land as also the Chabutara which was construed on it, there was no escape for the Court below except to reach the conclusion that the action of the Corporation was unauthorised and it had to be prevented from interfering with plaintiff's possession of the Chabutara. Learned counsel has rightly submitted that the court below wrongly took the view that all "open land" vested in the Corporation which holding is palpably and evidently contrary to the decision of this Court in Laxman Singh (supra).
8. Corporation's counsel, Shri Khedicar, has urged strenuously a twofold submission. Firstly, counsel contends, there was no proof before the Court that the Chabutara in question was of the title of plaintiff's vendor inasmuch as his vendor's title has not been proved and that no measurements of the Chabutara shown in Ex. P/2 are given in any of the two documents of title (the deed and the map) proved by the plaintiff. He supports the finding and conclusion of the Court below that non-examination by the plaintiff of his vendor must fatally hit him. The second contention of Shri Khedker is that the defendant-Corporation cannot be faulted in any view of the matter for not proving that the Chabutara was its property or that it was a part of the street as pleaded by it since the plaintiff had to prove his own case. He has also pressed in service the case of Sind Mahajan Exchange, Ltd 1980 Jab LJ 581 to submit that the holding in Dharam Chand (supra) and Laxman Singh (supra) would not help the plaintiff.
9. I have heard Shri Khedkar at length but I am not satisfied that any of the contentions pressed by him have any merit I see no substance at all in counsel's argument or even in the perverse conclusion of the two courts below that it was at all necessary for the plaintiff to examine his own vendor and non-examination of the vendor fatally defeated his cause. The question of declaration of title apart, the question of grant of injunction on the basis of possessory title ought to have been considered by the Court below and the claim in respect thereof decreed. Nothing of the sort has been done by any of the Courts below. The suit was dismissed in toto. Perversity is writ large on the face of both the judgments.
10. It may be that for declaration of title, stricter proof was necessary and proper measurement of the land of which title was derived under the sale-deed should have been proved. But, in any view of the matter, the relief of permanent injunction could not have been refused on the basis of evidence and indeed their own findings that possession of the Chabutara by the plaintiff, for 7/8 years was duly established and proved. Indeed, the defendant -- Corporation came to demolish the Chabutara and it had been nowhere their case that the Chabutara belonged to somebody or was constructed by some person other than the plaintiff.
11. At this stage of dictation, Shri Khedkar stands up and submits that because plaintiff made a claim on the basis of Ex. P/2 for declaration of title, lesser relief of only permanent injunction cannot be granted to him. This, submission on the part of the learned counsel is too presumptuous being contrary to the decision in Nair Service Society's case (AIR 1968 SC 1165). Indeed it is for the Court to give relief in accordance with facts found and proved even if a tall claim is laid. In any view of the matter, I am not at all convinced that the two Courts below were justified in dismissing the suit in toto. Indeed, the special plea which the defendant took saddled on it the duty to prove the plea and prove affirmatively that the Chabutara was a part of the street and, therefore, plaintiff was not entitled to any relief. In that, the defendant has miserably failed and Shri Khedkar cannot help without conceding to that fact. Sind Mahajan (1980 Jab LJ 581 (supra)) is a decision on Section 82. Their Lordships were not at all called upon in that case to consider the provision of Section 83 of the Act with reference to which decision was rendered in Dharam Chand (supra) and Laxman Singh (supra). The decision, therefore, is of no avail to the defendant-Corporation.
12. In the result, the appealsucceeds but is allowed in part. The judgment and decree passed by the Courts below are modified. The prayer for declaration of title as also compensation is rejected and the suit is dismissed to that extent. However, it is decreed in part insofar as it concerns the prayer for permanent injunction. Defendant-Corporation is restrained from interfering with the possession of the plaintiff of the Chabutara and the land on which it stands till it is able to prove its own title to the land No costs.