Urban Improvement Company Pvt. Ltd. vs National Hydro Power Corporation (NHPC) and Another

L.N. Mittal, J.—This is second appeal by Plaintiff Urban Improvement Company Pvt. Ltd. having failed in both the courts below.

Plaintiff-Appellant filed suit alleging that the Plaintiff is owner in possession of Green Field Colony in District Faridabad. The Plaintiff is in possession of 433 acres land approximately for more than 40 years. After getting necessary sanctions, the Plaintiff raised pacca boundary wall around its land. The suit land comprising of various khasra numbers mentioned in the plaint, along with other land, is owned and possessed by the Plaintiff. Defendant No. 1 has purchased land abutting the suit land from Municipal Corporation, Faridabad (later on impleaded as Defendant No. 2). Defendant No. 2 allotted 35 acres land to Defendant No. 1 and out of it, possession of 0.20 acres was not delivered. Defendant No. 1 has no right or interest in the suit land, but Defendant No. 1 started interfering in Plaintiff''s possession over the suit land. Defendant No. 1 has also demolished part of boundary wall raised by the Plaintiff. Accordingly, the Plaintiff sought permanent injunction restraining Defendant No. 1 from demolishing remaining boundary wall of the Plaintiff. Plaintiff also sought mandatory injunction directing Defendant No. 1 to reconstruct the boundary wall already demolished.

Defendant No. 1 inter alia pleaded that Plaintiff had encroached upon part of the land belonging to Defendant No. 2 illegally. The said encroachment was detected by Defendant No. 2 in April/May 2000 and was removed by Defendant No. 2 Municipal Corporation on 23.11.2000 and 24.11.2000 after issuing notices dated 05.10.2000 and 19.10.2000 to the Plaintiff. Defendant No. 2 had also got its land demarcated before removal of the encroachment made by the Plaintiff. Possession of 35 acres of land was delivered by Defendant No. 2 to Defendant No. 1 after removal of the aforesaid encroachment. Immediately, Defendant No. 1 raised barbed wire fencing in November/December 2000 around the land allotted to it by Defendant No. 2. Now, Defendant No. 1 was raising permanent boundary wall around the said land. Plaintiff''s musclemen obstructed the same. However, later on, Plaintiff''s official assured Defendant No. 1 not to interfere in construction of boundary wall by Defendant No. 1. Thereafter, the Plaintiff filed the instant suit.

Defendant No. 2 pleaded that no sanction was sought from it for raising the boundary wall and the said boundary wall is illegal and unauthorized and liable to be demolished. Zoning Plan-cum-demarcation for the site of Defendant No. 1 was approved and thereafter, land was allotted to Defendant No. 1. Plaint allegations were controverted.

Learned Additional Civil Judge (Senior Division), Faridabad, vide judgment and decree dated 27.09.2008, dismissed the Plaintiff''s suit. First appeal preferred by the Plaintiff has been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated 05.10.2009. Feeling aggrieved, Plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the Appellant and perused the case file.

Plaintiff-Appellant failed to depict that disputed land claimed by it is part of the land owned by the Plaintiff. The Plaintiff-Appellant did not obtain demarcation of its land and in the absence of demarcation, it cannot be said that the suit land is part of the Plaintiff''s land. In other words, the Plaintiff has failed to prove that the suit land is owned and possessed by it. On the other hand, Defendant No. 2, after demarcation, got the encroachment made by the Plaintiff removed from the land of Defendant No. 2 and thereafter, Defendant No. 2 gave possession of 35 acres land to Defendant No. 1. The Plaintiff has, thus, been rightly non-suited by the courts below because in the absence of demarcation report on behalf of the Plaintiff, there is practically no evidence to depict that suit land is part of land owned and possessed by the Plaintiff-Appellant.

Learned Counsel for the Plaintiff-Appellant contended that demarcation report by Defendant No. 2 was obtained in the absence of the Plaintiff-Appellant. However, this contention does not help the Plaintiff-Appellant because onus was on the Plaintiff-Appellant to prove that the suit land is part of the land owned and possessed by the Plaintiff-Appellant. However, Plaintiff-Appellant has miserably failed to prove the same. On the contrary, pursuant to demarcation report obtained by Defendant No. 2, Defendant No. 2 took action to remove encroachment made by the Plaintiff on the land of Defendant No. 2. In this view of the matter also, the Appellant cannot succeed.

Learned Counsel for the Plaintiff-Appellant referred to report of Local Commissioner Sanjeev Sharma and contended that foundation of the boundary wall of the Plaintiff, which had been demolished by Defendant No. 1, was still in existence when the said Local Commissioner visited the spot. However, this contention does not help the Plaintiff-Appellant in any manner because it is version of Defendants that Defendant No. 2 had removed encroachment made by the Plaintiff-Appellant on the land of Defendant No. 2. The aforesaid report of Local Commissioner does not, in any manner, depict that suit land is part of the land owned and possessed by the Plaintiff-Appellant.

Both the courts below, after appreciation of evidence on record, have come to concurrent finding against the Plaintiff-Appellant. The said finding cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine.