Baldev Parkash v. Municipal Corporation,Ludhiana & Anr.

This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the respondents from dispossessing and interfering in his possession over the property in dispute, has been dismissed. The brief facts of the case, as alleged in the plaint, are that the site over which shop No.3 and its verandah was constructed by the plaintiff was given to him by the defendant-respondents. The plaintiff-appellant raised construction over the site as per the site plan in the year 1980 with his own funds and was doing his business in the shop in dispute., and the respondents were receiving license fee of Rs.120/- per month and issuing receipts to the plaintiff-appellant. The plaintiff-appellant is in peaceful, continuous and uninterrupted possession of the suit property, and the defendants have no right to cancel the license or to interfere in the peaceful possession and to demolish the suit property. The plaintiff- appellant has not breached any terms and conditions of the license issued RSA No.163 of 2010 2 by the defendant-respondents to the plaintiff-appellant, and the plaintiff- appellant has every right to protect his possession over the suit property. It has further been averred that the defendants are threatening to dispossess the plaintiff-appellant illegally and without following due course of law. Hence this suit. Upon notice, the defendant-respondents appeared and filed written statement raising various preliminary objections. It was submitted that the plaintiff-appellant was not entitled to the injunction as prayed for. On merits, the defendant-respondents denied any allotment of the site in dispute in favour of the plaintiff-appellant. It was further averred that he parked his rehri on a part of the road without permission of the defendant- respondents, and the same was encroachment on the part of the road. No license fee was ever charged from the plaintiff by the defendant- respondents. Uninterrupted possession of the plaintiff-appellant over the site in dispute was also disputed. It was asserted that the appellant-plaintiff was merely an encroacher and has no right to possess over the site in dispute which belong to the defendant-respondents. It was further submitted that the plaintiff-appellant was misusing the process of law by making encroachments at the disputed site under the garb of ex parte injunction of the Court. The defendant-respondents were within their rights to remove the encroachment made by the plaintiff-appellant. It was further submitted that no irreparable loss and injury was suffered by the plaintiff-appellant if the impugned encroachment was removed by the respondents under the provisions of the Punjab Municipal Corporation Act. Ultimately, dismissal of the suit was prayed. RSA No.163 of 2010 3 On appreciation of the evidence and after hearing the learned counsel for the parties, the trial Court dismissed the suit of the plaintiff- appellant with costs vide judgment dated 10.10.2007. Aggrieved against the aforesaid judgment and decree, the plaintiff filed an appeal before the lower Appellate Court. Along with this appeal, the appellant filed an application under Order XLI Rule 27 of the Code of Civil Procedure, for leading additional evidence, by producing the receipts issued by the Municipal Corporation and electricity bills etc. The aforesaid application was opposed by the defendant-respondents asserting therein that no evidence was led beyond the pleadings, and the additional evidence sought to be produced had no relevancy in the matter and the same was not required for the pronouncement of the judgment. After considering the rival contentions of the learned counsel for the parties and perusing the file, the aforesaid application which was filed at the fag end of the case, was dismissed. The appeal filed by the plaintiff-appellant was also dismissed by the Additional District Judge, Ludhiana, vide the impugned judgment and decree dated 21.10.2009 observing as under:- “ After considering the rival contentions of learned counsel for the parties and perusing the file of the trial court, I am of the view that the arguments advanced by Ld. Counsel for the appellant are without any merit. The laws relied upon by Ld. counsel for the appellant are not applicable to the facts of the case and as such, distinguishable. It is settled law that the plaintiff has to stand on his own legs. He has to prove his allotment letter if any, but in the present case, the plaintiff himself admitted that he is not in possession of the allotment letter. The plaintiff claims permanent injunction against the RSA No.163 of 2010 4 defendant as per the site plan, the boundary of which has been mentioned in the plaint. The site plan has been proved as Ex.P1 but in this site plan, the area of the property has not been mentioned. Moreover, the dimensions of the property shown in the site plan have not been mentioned. It is shown as shop and verandah in the site plan but there is no document on the file that the area shown in the site plan was ever allotted to the appellant. The plaintiff has failed to prove his lawful possession over the suit property. As such, he is not entitled for the protection of law by way of due course of law.” Still not satisfied the instant appeal has been filed by the plaintiff-appellant challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that both the Courts below have completely misread and misconstrued the evidence available on record, as the continuous and uninterrupted long possession of the plaintiff-appellant over the shop which was built by him has been proved and it has come on record that the plaintiff-appellant was regularly paying the license fee. From the evidence on record the appellant was found in possession of the shop in dispute and as such the plaintiff- appellant was not a trespasser over the property in dispute and was entitled to protect his long standing possession. On the basis of the aforesaid averments, learned counsel for the appellant has submitted that the following substantial questions of law arise in this case:

1. Whether a person in an established possession can be dispossessed from the disputed site without following legal process of law ?

2. Whether the possession of the appellant could be termed as RSA No.163 of 2010 5 unauthorised when there is documentary evidence to prove payment of Tehbazari (licence fee) and acceptance of the same by the respondents for long period ?

3. Whether an alleged trespasser has no right to protect his long possession ?

4. Whether the constitutional guarantee under Article 21 of the Constitution of India, protecting the life and liberty of every citizen which includes right to earn his livelihood as held in Bombay Pavement case could be violated by the respondents. ? I have heard the learned counsel for the appellant and perused the impugned judgment and decree of the Courts below. Admittedly, the property in dispute belonged to the defendant- respondents. In spite of the pleadings that the plaintiff-appellant was allotted the site in dispute under a license given by the respondents, the appellant has failed to prove any such allotment in his favour. In fact, the plaintiff-appellant himself admitted that he was not in possession of any such allotment letter. The plaintiff-appellant has claimed permanent injunction against the defendant-respondents as per the site plan Ex.P1 the boundaries of which have been mentioned in the plaint. However, in the site plan Ex.P1 area of the property has not been mentioned. Moreover, the dimensions of the property in the site plan were also not described. On appreciating the evidence and document Ex.P.1 the Courts below found that the appellant was not in lawful possession over the suit property, and as such, he was not entitled to protect his possession against the true owner, as held by the Apex Court in the case of 2008(2) Apex Court Judgments 660, as also by this Court in Sukhwant Singh v. Divisional Forest Officer and another, RSA No.3800 of 2004 decided on RSA No.163 of 2010 6

2.4.2009 (SB). It is pertinent to note that a Division Bench of this Court vide its judgment dated 10.4.2008 in CWP No.4886 of 2003, had issued directions to the respondents to remove encroachments from the public properties not later than six months from the date of order and also directed the Municipal Corporation to take necessary and prompt action in this regard. So, in view of the aforesaid directions as well, the plaintiff- appellant who has encroached the government land, has no right to remain in possession. For the reasons recorded hereinabove, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. ( Rakesh Kumar Garg) Judge January 19 , 2010