Punjab-Haryana High Court
Sat Pal And Others vs The Municipal Corporation on 13 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No.1255 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1255 of 1986
Reserved on:12.07.2013.
Date of Decision:13.08.2013.
Sat Pal and others
...Appellants
Versus
The Municipal Corporation, Jalandhar and others
...Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. R.L.Gupta, Advocate,
for the appellants.
Mr. A.R.Takkar, Advocate,
for respondents no.1 and 2.
****
PARAMJEET SINGH, J.
Instant regular second appeal has been filed by the appellants- plaintiffs challenging the judgment and decree dated 06.08.1982 passed by the learned Senior Sub Judge, Jalandhar whereby suit filed by the appellants-plaintiffs was dismissed and also the judgment and decree RSA No.1255 of 1986 2 dated 09.12.1985 passed by learned Additional District Judge, Jalandhar whereby appeal preferred by the appellants-plaintiffs against judgment and decree dated 06.08.1982 was also dismissed.
Shorn of unnecessary details, the facts relevant for disposal of the present appeal are to the effect that the appellants-plaintiffs (hereinafter referred to as "appellants") filed suit for declaration claiming themselves as owners in possession of the property in dispute measuring 107' x 96' and 118' x 115' i.e. 56 marlas 124 sq. ft. as described in the head-note of the plaint. The appellants also prayed for mandatory injunction directing the respondent-Municipal Corporation, Jalandhar to remove the obstruction on the portion denoted "ABCD" in the site plan attached with the plaint. The trial Court after considering the pleadings framed the following issues:
"1. Whether the plaintiffs are the owners of the property in dispute?OPP
2. Whether the plaintiffs are entitled to the injunction prayed for?OPP
3. Whether the suit is not maintainable in the present form?OPD
4. Whether the plaintiffs are estopped by their act and conduct from filing this suit?OPD
5. Whether the Civil Court has no jurisdiction to try this suit?OPD
6. Whether the notice serviced on the defendant is invalid?OPD
7. Whether the plan of the property in suit is wrong. If so its effect?OPD
8. Relief."RSA No.1255 of 1986 3
The trial Court after considering the evidence on record dismissed suit of the appellants vide impugned judgment and decree dated 06.08.1982 and the appeal preferred by the appellants against the impugned judgment was also dismissed by the learned lower Appellate Court. Hence, the instant regular second appeal.
When the appeal was admitted, no substantial question of law was framed. However, during the pendency of appeal, learned counsel for the appellant filed following substantial questions of law which were taken on record vide order dated 24.05.2011:
(i) Whether the documents A, B, C, D and E in the facts and circumstances of the case are admissible in evidence and are deemed to be admitted in view of Sections 63 (1), 65 (c ), (f), 74, 76, 77, 79, 80 and 90 of Indian Evidence Act 1872 and Order 8 Rules 3, 4 and 5 of the Code of Civil Procedure?
(ii) Whether the findings of the courts below on issues no.1 and 2 are illegal in view of Order 8 Rules, 3, 4 and 5 of the Code of Civil Procedure and in view of findings of courts on issue no.7?
(iii) Whether the findings of the learned courts below that the site in dispute is a public street is ultra vires of Clause 13 sub-clause (a) of Section 3 of Punjab Municipal Act and more so when the defendants have not produced the old field book and vide judgment dated 16.12.1940 the predecessor-in-interest of the plaintiffs RSA No.1255 of 1986 4 have been held to be the owners of the properties in dispute and the file book Ex.DW 1/A is only a photocopy and the same is inadmissible?
(iv) Whether the findings of the courts below that the plaintiffs could not tally the boundaries of the site in question with the site Ex.PW 2/A is ultra vires of the Order 8 Rules 3, 4 and 5 of the Code of Civil Procedure?
(v) Whether the findings of the learned lower Appellate Court that no evidence has been led to establish that the plaintiffs are not in occupation of the area of measuring 56 marlas 125 sq. ft. is beyond the pleadings of the parties?
(vi) Whether in the facts and circumstances of the case the whole approach of the learned courts below suffers from perversity?
However at the time of arguments, learned counsel for the appellants has raised following substantial questions of law:
(i) Whether both the courts below have erroneously not exhibited documents Mark A, B, C, D and E which are certified copies of the record of decided cases ?
(ii) Whether the learned courts below have misread the evidence and misinterpreted the provisions while deciding the issue whether encroached place is a street under Section 2(56) of the Punjab Municipal Corporation RSA No.1255 of 1986 5 Act, 1976 (in short "the Act, 1976") and a public street under Section 2 (43) of the Act, 1976 and thus, the impugned judgments and decree are perverse?
First of all, I would like to deal with the objections with regard to the documents marked as A, B, C, D and E. It would be appropriate to deal with the first question whether these documents are admissible in evidence and were required to be exhibited.
Learned counsel for the appellants has contended that these documents are certified copies of the judicial record and the files have been burnt in fire, as such the certified copies can be exhibited in evidence as secondary evidence. The learned counsel has further contended that the appellants moved application before the trial court for permission to lead secondary evidence on 06.08.1981. Reply was filed by the respondents. On 02.12.1981, the following order was passed by this Court:
" The plaintiffs had filed an application for permission of secondary evidence regarding certain documents alleging that the file regarding those were burnt in the fire which broke out in the record office in 1976. The application is opposed by the defendants in their reply. I have heard both the counsel.
2. No such evidence has been brought on file that the named documents were also burnt in the fire, therefore, as agreed by the defendants counsel, the plaintiffs are allowed to lead evidence regarding those RSA No.1255 of 1986 6 documents in secondary form, but the same will be exhibited and read in evidence, if proof of their loss is proved by the plaintiffs.
3. To come up on 19.1.1982 for plaintiffs evidence......"
While passing the impugned judgment and decree dated 06.08.1982, the trial Court considered regarding these marked documents and held as under:
"6. To prove ownership of the property in dispute, the plaintiffs produced Mark D, certified copy of the order of Revenue Officer-cum-Assistant Collector dated 16.12.1940 passed on the statements of Babu Gulam Hussain, Overseer, certified copy of which is mark A, on the application of Shri Charan Dass and Shri Ramji Dass to the Revenue Assistant, certified copy of which is mark C and mark B & E, certified copies of the statements of Shri Ramji Dass and Shri Charan Dass in a case of Ramjidass Vs. Charn Dass in the Court of Sub Judge on 29.5.1964, which can be exhibited without formal proof being certified copies of previous proceedings, besides the oral evidence of PW 4 Shri Sudesh Pal and PW 7 Shri Sat Pal, two of the plaintiffs and PW 5 Sh. Babu Ram, PW 6 Sh. Charn Dass, stating that Shri Charan Dass father of the plaintiffs was owner of the site in dispute and on his death they i.e. the plaintiffs are the owners. But PW 4 Shri RSA No.1255 of 1986 7 Sudesh Pal plaintiff having admitted that this site is within Lal Lakir and has no khasra number, therefore, the Revenue Officer-cum-Assistant Collector had no jurisdiction to decide its title in favour of Charan Dass and Ramji Dass, specially when he did not make any enquiry regarding title and on the basis of the statement of the Overseer of the Municipal Committee gave this finding on a simple application of Charan Dass and Ramji Dass. Therefore, mark D cannot be termed to be a judgment of any court, nor a document, which determine the title between the parties. Marks B and E being statements of alleged original owners in a case between themselves also cannot prove plaintiffs' title against defendants. It is admitted by Shri Sudesh Pal plaintiff as PW 4 that this property was ancestral of Ramjidas who was cousin of their father and that there was a litigation between Ramji Dass and Charan Dass. However the judgment of that case is not produced which could be binding being a judgment of Civil Court. It is also admitted by PW 4 that they constructed the house in this site, after sanction of site plan wherein disputed site was shown, however that site plan is also not proved to connect them with the site in dispute, which could bind the Municipal Corporation and debar them from denying plaintiffs' title. It is stated that defendants Municipal Corporation has constructed a road RSA No.1255 of 1986 8 in the site in dispute but PW 4 Sudesh Pal and PW 7 Sat Pal both plaintiffs admit that the road is outside the boundary of their house and PW 6 Shri Charan Dass has stated that the house and the boundary wall were constructed before the construction of the road, then how this site remained outside their boundary wall of the house, if it also belonged to them. This is a great circumstance, which disproves the claim of title to this site of the plaintiffs. The PWs also could not correctly tally the boundaries of this site with the map Ex.PW2/1, from the judicial file, of which Mark A, C, and D mentioned above were part of. Hence I would hold that plaintiffs have failed to prove that they are owners of the property in dispute. Accordingly, this issue is decided against them. "
Thereafter, the learned lower Appellate Court also considered categorically as to whether these marked documents could be exhibited and read in evidence and passed the following order:
"9. At the out-set, the question of admissibility of the documents marked A, B, C, D and E may be tackled. Mark "A" is the certified copy of the statement of Babu Gulam Hussain Overseer of the Municipal Committee dated 16.12.1940 recorded by the Revenue Assistant. Mark "B" is the certified copy of statement made by Charan Das on 29.5.1964 in the court of Shri Ranjeet Singh Sood Sub Judge Ist Class, Jalandhar in the civil suit RSA No.1255 of 1986 9 titled 'Dharan Das vs. Ramji Das. Mark 'C' is the certified copy of the objection petition filed before the Revenue Assistant Jalandhar by Ramji Das and Charan Das pleading that their property has been wrongly included in the file book of the Muncipal Committee. Mark 'D' is the certified copy of the order dated 16.12.1940 of the Revenue Assistant passed on the objection petition filed by Charan Das and Ramji Das. Mark 'E' is the certified copy of statement made by Rajinder Kumar Mukhtiar of Ramji Das in the court of Shri Ranjeet Singh Sood Sub Judge Ist Class, Jalandhar on 29.5.1964 in a civil suit for possession by partition filed by Ramji Das against Charan Das.
10. The contention of the plaintiffs is that the record of the case decided by the Revenue Assistant on 16.12.1940 and that of the court of Shri Ranjit Singh Sood Sub Judge Ist Class, Jalandhar decided on 29.5.1964 has been destroyed in the fire which broke out in the Record Room Jalandhar in October, 1976 and thus the certified copies of the documents contained in those files are admissible as public documents and by way of secondary evidence. In my opinion the plaintiffs did not lead sufficient and proper evidence to warrant the admission of the said documents by way of secondary evidence. Brij Mohan appearing as PW 1 stated that a fire broke out in RSA No.1255 of 1986 10 the Record room in October 1976 and he searched out the available record but the files of case No.54/40 and 337/63 i.e. the cases in question are not traceable. There is absolutely no evidence if the files were actually consigned to the Record room and whether at the time of breaking out the fire the files were in the record room. The documents marked A,B, C, D and E, therefore, could not legally be admitted in evidence."
I have also considered the question of admissibility of these documents. Even considering the same to be exhibited documents, being public documents, still their probative evidentiary value is required to be considered which has also been considered by the courts below. Both the courts have recorded a categoric finding that from these documents, the ownership of the property in question is not proved.
The main stress of learned counsel for the appellants is that the site plan Ex.PW 2/1 has been admitted on record which proves the ownership. As such, findings on issues no.1 and 7 are contradictory. The said contention cannot be accepted. Mere admission of Ex.PW 2/1 site plan is not sufficient to prove the ownership. The site plan only depicts the position. The title of the property is required to be proved independently by cogent evidence on record. As such, I do not find that the appellants have been able to prove their ownership even on the basis of documents which though marked documents, but this Court having considered the same as exhibited documents. The first question of law is answered accordingly.
RSA No.1255 of 1986 11
Before I deal with second substantial question of law with respect to the fact that whether the encroached part is a street or public street as defined under the Act, 1976, it would be appropriate to reproduce Section 2 (43) of the Act, 1976 where "public street" has been defined and Section 2 (56) of the Act, 1976 where "street" has been defined which read as under:
"Section 2 (43) : "public street" means any street which vests in the Corporation as a public street or the soil below the surface of which vests in the Corporation or which under the provisions of this Act becomes, or is declared to be a public street.
Section 2(56) : "street" shall mean any road, footway, square, court, alley, gully or passage, accessible, whether permanently or temporarily to the public and whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut, thereon, and if it is sued by any persons as means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not, but shall include any part of such space which the occupier of any such building has right at all hours to prevent all other persons from using as aforesaid and shall include also the drains or gutters therein, or on either side and the land RSA No.1255 of 1986 12 whether covered or not by any pavement, verandah or other erection, upto the boundary of any abutting property not accessible to the public."
It would be appropriate to mention that the Municipal Corporation, Jalandhar has taken categoric defence that the property in dispute is a street and it was included as a "public street" in the field book prepared in year 1987 and the alleged encroachment has been vehemently denied by the Corporation. It has also been categorically stated by the appellants that they have never raised objection to the construction of the metalled road and they have even accepted the existence of the road. From the perusal of Section 2 (56) of the Act, 1976, it is clear that definition of "street" includes a vacant space where houses, shops or other building abuts therein and it is used by any person as means of access to or from any public place or thoroughfare. If this description is satisfied, then it can be considered as a street. So far as definition of "public street" is concerned, the evidence clearly shows that street in question has been entered in the field book and has been declared as public street. In the present case, the Municipal Corporation, Jalandhar has taken a categoric stand that it is a metalled road and both the courts below have recorded a concurrent finding of fact that on both sides of the street, there are constructed buildings and the road constructed by the respondents is outside the boundary wall of the house of the appellants. The admission of appellant-Sudesh Pal leaves no room for doubt that the appellants raised the construction in the property owned by them and also constructed boundary wall enclosing their RSA No.1255 of 1986 13 property and that the disputed site is beyond their property. There is a categoric evidence on record that the street was constructed in the year 1967 and it was a metalled road linking Jalandhar-Ferozepur Road. The site in dispute is an open passage for all and one and the same is connected to the main road. There is a categoric evidence on record that when the road was constructed, the appellants never raised a little finger or raised any objection. It has also been admitted by PW 6 Charan Dass that even at the time of dispute with Ramji Dass, the site in dispute used to be lying vacant and children used to play there. It is clear that the site in dispute was a street within the scope of Section 2 (56) of the Act, 1976. There is an admission of the fact that the boundary wall had been in existence since the time of father of the appellants which indicates that disputed property was since being used as street. The observation of the Hon'ble Lahore High Court in Mt. Resham and another vs. Matu Ram and another AIR 1934 Lah. 936 are relevant in this regard. The Court observed as under:
" According to that section "public street" shall mean any street heretofore levelled, paved, metalled, channelled, sewered or repaired out of Municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor. In the present case, the pavement of the street was carried out with the RSA No.1255 of 1986 14 express consent of the alleged proprietors and there was no agreement that the street should not thereby become, a public street. It has admittedly been levelled paved, metalled, channelled, sewered, and repaired out of Municipal funds. It therefore comes within the purview of the aforesaid definition of a public street. This being so, the plaintiff cannot prevent the defendants from having a right of way over it. It would be a contradiction in terms that a street should be a public street and still it should not be open to a member of the public. The ownership of the soil may possibly remain in the plaintiffs, but they have no right to prevent the defendants from using the street as such."
This Court in The Sangrur Central Cooperative Bank Ltd. vs. Om Parkash @ Kapil Dev, RSA No.2134 of 2006, decided on 05.05.2010 has held that when Municipal Corporation has not been objected from laying the bricklining etc., it is implied that owner has consented to use the street as "public street". This Court has observed as under:
" The argument of the learned counsel for the appellants that there is no evidence to prove the necessary ingredients of the definition of "public street"
as defined under Section 3(13) of the Punjab Municipal Act, 1911, is erroneous as admittedly the previous owner had not objected to the laying of bricklining of the street RSA No.1255 of 1986 15 and other facilities. Neither the appellants after the purchase of the property, had at any stage stopped the Municipal Council from extending other facilities in the street in question. Thus, there was implied consent of the owner of the property to use the same as pubic street. Moreover, admittedly, the money has been spent from the public funds to provide civic amenities in the street and thus, it cannot be held that the aforesaid street is not a public street."
In the instant case, after appreciating the evidence on record, both the courts below have recorded a concurrent finding of fact that the street is in existence and the appellants have failed to prove that this is not a street and it has been encroached by the Municipal Corporation, Jalandhar. From the above, it is clear that the site in dispute is a street in view of Section 2 (56) of the Act, 1976, as on both the sides, the houses are in existence and there is a drain alongside the metalled road and the said metalled road connects Jalandhar-Ferozepur Road. The public has access to this road. Furthermore, there is a categoric evidence that the said road was entered in the field book pertaining to the entry of streets and no one raised a little finger. In view of Section 2 (43) of the Act, 1976, the said street has been declared "public street" and as such the appellant has not even challenged that this is not a "street". The contention of learned counsel for appellant that to know the factual position, Local Commissioner could have been appointed to visit the spot and submit report regarding encroachment, if any, is misconceived. RSA No.1255 of 1986 16 The appellants while claiming the relief of mandatory injunction should positively prove that certain part has been encroached upon. The reliance of the learned counsel for the appellants on Darshan Kaur vs. The Amritsar Primay Cooperative Agricultural Development Bank Limited Amritsar and another The Punjab Law Reporter Vol. CLVIII- (2010-2) 289, Sobha Rani vs. Ravi Kumar 1998 (3) R.C.R. (Civil) 139, Marwari Kumhar and others vs. Bhagwanpuri Guru Ganeshpuri and another 2000 (4) R.C.R.( Civil) 279, Bhaiyashbir Chand vs. Smt. Bachan Kaur and others 1966-1968 Supple. The Punjab Law Reporter 101, Pyare Lal vs. Mehar Singh and others Vol. CLXII-(2011-2) The Punjab Law Reporter 82, Benamali Das vs. Rajendra Chandra Mardaraj Harichandan and others AIR 1975 Supreme Court 1863 and Lakhi Baruah vs. Padma Kanta Kalita 1996 AIR (SC) 1253 and Som Parkash vs. Prabhati Lal 1991 (2) PLR 611 is of no help to the appellants as these judgments distinguishable on the facts and circumstances of the present case.
In view of above, I do not find any illegality or perversity in the impugned judgment and decree dated 06.08.1982 as well as the judgment and decree dated 09.12.1985.
Dismissed.
No order as to costs.
(Paramjeet Singh) Judge August 13, 2013 parveen kumar