Gurdev Singh, J.

1. Appellant/plaintiff - Raj Kumar filed suit for permanent injunction restraining the respondent/defendant Municipal Corporation, Ludhiana, restraining it from making any street through his property situated in Durgapuri Haibowal Kalan, Ludhiana, fully detailed in the plaint. The suit was decreed by Civil Judge (Sr. Division), Ludhiana, vide judgment dated 20.2.2007. The defendant preferred an appeal against that judgment and decree, which was accepted vide judgment dated 21.3.2009 and the suit of the plaintiff was dismissed. Against that judgment and decree the plaintiff has come up with this second appeal.

2. The case of the plaintiff, as pleaded in the plaint, is that he purchased the property in dispute vide registered sale deed dated 18.1.1993 from one Pardeep Kumar, who had purchased the same from one New Found Builders and M/s R.Sharma Associates, vide sale deed dated 15.6.1990. A boundary wall had been constructed around that property and the same consists of four rooms, one kitchen, one bath room, one latrine, one varandah, one stair case and a courtyard. The officials of the respondent came to the spot on 4.6.2001 and threatened to construct a street by demolishing this property. Therefore, he filed the aforesaid suit for permanent injunction.

3. The suit was contested by the defendant. It has been pleaded in the written statement that the town planning scheme was sanctioned on 24.10.1984. This area was declared as unbuilt by the government vide order dated 6.4.1979. The said scheme was prepared on 13.9.1980 and published in the newspaper on 6.12.1980 and 7.12.1980. The objections were invited and after hearing those objections the scheme was amended and again published on 16.3.1984. The objections were invited to the amended scheme, which was finalised on 9.5.1984 and was sent to the government for final approval on 12.6.1984. In that scheme street of 20 feet in width has been shown on the western side of the house of the plaintiff and he has encroached upon that street up to 8 feet. He is not entitled to the equitable relief of permanent injunction. It has every right to remove that encroachment.

4. In replication to the written statement, the plaintiff denied the contentions raised, therein by the defendant and reiterated his averments made in the plaint.

5. On the pleadings of the parties, the following issues were framed by the trial Court:-

1. Whether plaintiff is entitled to injunction as prayed for? OPP

2. Whether suit is not maintainable? OPD.

3. Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD.

4. Relief.

6. To prove his case, the plaintiff examined himself as PW3, Deepak Sharma PW1, Parshotam Lal PW2, Paul Dass PW4. On the other hand the defendant examined Satish Kumar Draftsman, DW1 and Dilbagh Singh DW2.

7. After going through the evidence so produced by the parties and hearing their counsel, the learned trial Court decided all the issues in favour of the plaintiff and resultantly decreed the suit. As already said above, the defendant preferred an appeal against that judgment and decreed, which was accepted and the suit of the plaintiff was dismissed.

8. I have heard learned counsel for both the sides.

9. It has been submitted by learned counsel for the plaintiff that it was wrongly concluded by the first Appellate Court that the suit is not maintainable in view of the powers conferred upon the defendant under Section 269 of the Punjab Municipal Corporation Act, 1976 (hereinafter referred to as the Act). That power was never invoked by the defendant at any stage. Simply the case of the plaintiff is that he is coming in posr session of the property in dispute as owner and the defendant wants to construct the street therein illegally and that the defendant miserably failed to prove that there was any encroachment made by the plaintiff in the street situated on the western side of his house and width of which is stated to be 20 feet. When that