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IN THE HIGH COURT OF PUNJAB AND HARYANA
SURINDER GUPTA, J.
Inder Singh (Deceased) Through Lrs and Others – Appellant
Versus
Bhiwani Municipality, Bhiwani – Respondent
Regular Second Appeal No.2318 of 1987 (O&M)
Decided On : 30-03-2016
Injunction - Municipal Committee Dispute - Haryana Municipal Act, 1973 - Section 181(2) - 80 CPC - [SUMMARY]
Fact of the Case:
The plaintiffs sought permanent injunction against the Municipal Committee to restrain interference in their possession over a disputed land. The Municipal Committee contested the claim, asserting the land was public property and under its management.
Finding of the Court:
The court found that the plaintiffs had not properly described the suit property, deliberately withholding the khasra number to defraud the court. It held that the plaintiffs, not coming to the court with clean hands, were not entitled to the relief of injunction.
Issues: Proper description of the suit property, entitlement to relief of injunction, possession of public property, and concealment of material facts.
Ratio Decidendi: The plaintiffs' deliberate concealment of the khasra number of the suit land to defraud the court led to the denial of the relief of injunction. The court also emphasized that encroachers of public property are not entitled to discretionary relief.
Final Decision: The appeal by the Municipal Committee was allowed, and the appeal by the plaintiffs was dismissed. The judgment and decree of the lower courts were set aside, and the plaintiffs' suit was ordered to be dismissed with costs throughout.
SURINDER GUPTA, J.
1. This judgment will dispose of two appeals captioned above as the same arise from a common judgment passed by Additional District Judge, Bhiwani.
Brief Facts:-
2. Inder Singh and other sons of Anji Singh filed suit seeking the relief of permanent injunction to restrain the defendant Municipal Committee (now Municipal Council), Bhiwani from interfering in the ownership and possession of the plaintiffs over the land ABCDE shown with red colour in the site plan (Ex.PW5) and from dispossessing them from this property.
3. The plaintiffs averred that they are resident of Thola Aashian and have constructed their house and shop over the shamlat land which came to their share. Boundary wall around the property marked with ABCDE in the site plan (Ex.PW5) was raised 40-50 years back and the plaintiffs after constructing the shop and house started living here. Earlier, father of plaintiffs was in possession of the property and after his death, plaintiffs are in possession of the same. Municipal Committee, Bhiwani had been recovering house tax and water tax of the disputed property from the plaintiffs.
4. About this shamlat land, a suit was filed by Bishambar Dayal against Municipal Committee, Bhiwani bearing Civil Suit No.18 of 1979 decided on 04.12.1979 and the entire land which was got mutated in favour of Municipal Committee during emergency in its name, was again mutated vide mutation No.2195 dated 28.09.1981 as shamlat Thola. In order to harass the plaintiffs, defendant Committee was out to demolish the construction over the property in dispute without having any right and have initiated the proceedings in this regard. Apprehending danger to their possession and title over suit property, plaintiffs filed the instant suit.
5. Municipal Committee, Bhiwani contested the claim of the plaintiffs in the written statement, inter-alia, pleading that the suit is bad for non-joinder of necessary parties as the plaintiffs have not impleaded Haryana State as party because at the relevant time, Municipal Committee was superseded and was directly controlled by the Haryana State. It was further averred that the disputed site is Gair Mumkin Johri and Rafa-e-aam bearing killa No.947. The plaintiffs have deliberately withheld this information to defraud the Court. Plaintiffs have no concern with land bearing khasra No.947. A notice dated 08.11.1982 under Section 181(2) of Haryana Municipal Act, was given to the plaintiffs, who raised construction of a boundary wall overnight before filing the suit. The suit land being Gair Mumkin Johri(pond), Rafa-e-aam(place for use by all) being used by the general public for years, the defendant has every right to get the land under possession of plaintiff, released and demolish the unauthorised construction. About the civil suit No.18 of 1979, it was averred that the mutation was changed from the name of Municipal Committee but the plaintiffs were not party to that suit which pertains only to land is bearing khasra No.943 measuring 20 kanals 12 marlas, while the suit land bearing khasra No.947 measuring 8 kanals 8 marlas still being used as Rafa-e-aam by the general public. As per Wazib-ul-arz, Hadbast No.21, Mauja Bhiwani, this land was left for use by general public and cattle under the ownership of Municipal Committee. All the other averments by the plaintiffs were contested, controverted and denied.
6. Plaintiffs re-asserted their case in the replication and contested and controverted the averments in the written statement. About notice dated 18.11.1982 to the plaintiffs by the Municipal Committee, it was averred that Municipal Committee has no right to give notice.
7. Pleadings of the parties led to the framing of issues as follows:-
(1) Whether the plaintiffs are in possession of suit land as co-sharer? OPP
(2) Whether the suit is bad for non-joinder of necessary parties as alleged? OPD
(3) Whether the suit is not maintainable without notice under Section 52 of Haryana Municipal Act, 1973
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