Shakti Ram and others vs Municipal Council Jaitu and others

Jaswant Singh J.—Plaintiffs/appellants are in second appeal against the judgements and decrees of the courts below whereby their suit for mandatory injunction was dismissed by the trial court and in appeal the findings of the learned trial court were upheld by the appellate court.Brief facts of the case are that plaintiffs/appellants filed a suit for mandatory injunction alleging therein that they were owners of land measuring 20 kanals 16 marlas bearing khasra no. 793/2 situated in the revenue estate of Village Jaitu, District Faridkot. There was a tale end of sewerage constructed by the Municipal Council, Jaitu beyond the khal and the sewerage was constructed on Kotkapura road Jaitu. There was no link between tale and sewerage. Land of the plaintiffs fell between these two ends. It was further alleged that defendants were also co-sharers to the extent of ten marlas and that defendants without the permission and consent of the plaintiffs or without acquiring the land constructed sewerage line from Kotkapura road to the tale end of sewerage, which was 20 feet wide, 565 feet long and 15 feet deep in khasra no. 793/2. It was alleged that the land occupied by the plaintiffs came to be 41.5 marlas and after deducting 10 marlas of land belonging to the defendants the remaining land belonged to the plaintiffs. It was alleged that the defendants were not entitled to construct the sewerage without the consent or without acquiring the land of the plaintiffs. It was alleged that the prevailing price in the year 1997 when the sewerage was completed was Rs. 16,000/- per marla and as such the price of the land of the plaintiffs came to Rs. 5,00,000/- and that defendants had neither paid the compensation nor removed the sewerage despite repeated requests. Hence the suit.

Upon notice private defendants 2 to 6 did not contest the suit and were proceeded against ex parte. Defendant no. 1-Municipal Council, Jaitu contested the suit by filing written statement stating therein that (i) the suit was time barred as sewerage was laid down in the year 1992-93 and the suit had been filed after lapse of more than nine years; (ii) the suit was also barred under Order 2 Rule 2 CPC as earlier also the plaintiffs filed a suit for recovery of Rs. 50,000/- as damages for loss of crops in respect of the suit land which was decreed for Rs. 35,000/- vide judgement and decree dated 23.2.1998. It was also alleged that the suit was bad for non-joinder of necessary parties as the other co-sharers have not been joined. On merits it was denied that the plaintiffs were owners of the suit land measuring 20 kanals 16 marlas bearing khasra no. 793/2. It was alleged that the answering defendant was also recorded as owner to the extent of 10/416 share of the land and as such the plaintiffs could not claim that they were owners of the suit land. It was further averred that at the time of filing of the suit none of the plaintiffs were recorded as owner of khasra number 793/2 and Pawan Kumar, Bimla Devi and Mahabir Parshad were recorded as owners as per jamabandi for the year 1999-2000. It was further the case of the defendants that the site where the sewerage has been laid there was a passage of six feet in width and land for this purpose was purchased from one Hardev Singh etc. Since the land width of 6 marlas was enough, so 10-1/2 marlas was purchased from one Tirath Ram vide sale deed dated 16.9.1980 and mutation thereof had been sanctioned in the name of the answering defendant-Municipal Council, Jaitu. It was then averred that to make the passage meet Kotkapura Bathinda road 3-1/2 marlas of land was purchased from Harbans Lal etc. (defendants 2 to 5) and they executed a writing in favour of the answering defendant dated 3.7.1996 and a sum of Rs. 61,600/- was paid to them. It was asserted that the sewerage line had been laid and path to disposal point has been constructed on the land owned and possessed by defendant and not on the land of the plaintiffs.

On the pleadings of the paties the following issues were framed:-

1.Whether the plaintiffs are entitled for mandatory injunction as prayed for?OPP.

2.Whether the suit is time barred as alleged?OPD

3.Whether the suit is barred under Order 2 Rule 2 CPC?OPD.

4.Whether the present suit is hit by the principal of res injunction as alleged?OPD.

5.Whether the plaintiffs are estopped by their own act and conduct to file the present suit as alleged?OPP.

6.Whether the suit is bad for non-joinder of necessary parties as allaged?OPD. 7.Relief.

In support of their respective pleas both sides led evidence. The learned trial court after hearing both sides and perusing the oral/documentary evidence available on record decided all the issues in favour of the defendants, which findings were affirmed in appeal by the appellate court. Hence the present appeal.

It is submitted by the learned counsel for the plaintiffs/appellants that both the courts have erred in mis-reading the evidence led by the plaintiffs and as such the impugned judgments and decrees passed by the courts below are liable to be set aside.

After hearing the learned counsel I find no merit in the submission made on behalf of the appellants.

Both the courts below have recorded a concurrent finding of fact that though the plaintiffs/appellants have pleaded that their land measuring 31.5 marlas comprised in khasra no. 793/2 has been encroached upon by defendant no. 1, however, they have failed to prove the same as no demarcation report has been placed on record. Learned appellate court has noticed that though Dhanna Singh PW 2 stated that 2 kanals 5.6 marlas of land comprised in khasra no. 793/2 has been occupied by defendant no. 1, yet he could not disclose the basis on which he alleged the said encroachment. It was further found by the appellate court that this witness in his cross examination could not state the depth of the sewerage line.

It has also been found by both the courts below that the sewerage line was laid in the year 1992-93 and plaintiff filed the suit on 4.8.2001, thus the suit for mandatory injunction which has to be filed within three years was time barred. It has further been found by both the courts below that earlier plaintiffs filed a civil suit in February 1995 and at that time they might be knowing that their land has been encroached upon by the defendants and accordingly the relief sought in the present suit could have been sought in that earlier suit. However, the plaintiffs having failed to do so, thus the suit was barred under Order 2 Rule 2 CPC also.In view of the aforesaid concurrent findings of facts recorded by both the courts below on the basis of oral/documentary evidence led by defendants, no question of law much less substantial question of law arises for consideration in this appeal which is hereby dismissed.