MUNICIPAL COMMITTEE Vs. TIRATH RAM

JUDGEMENT

(1.) This second appeal has been filed on behalf of the defendant-appellant against whom the suit was dismissed by the trial Court, but, in appeal, the lower appellate Court, reversed the said decree and passed a decree in favour of the plaintiff-respondent, for a declaration that the impugned notice issued by the appellant was invalid.

(2.) The plaintiff brought the suit on the allegations that he was the owner in possession of six bighas 10 biswansis out of 12 bighas 3 biswa Kham Land situated in the abadi of Khanna town. On April 7, 1969, the appellant served notice under Section 172 of the Punjab Municipal Act (hereinafter called the Act), on him, calling upon him to remove, within twenty-four hours, the immovable encroachment from the Land, in question, on the ground of its being a municipal public street; failing which the same would be removed by it at his expense and he would be prosecuted for the offence under Section 172(1) of the Act. The validity of the said notice was challenged in the suit on the ground that he was the owner in possession of the suit Land and the site, in dispute, was not a public street, as alleged in the said notice. In the written statement, it denied the ownership of the plaintiff of the site, in dispute, and averred that the same constituted a part of the public passage (rasta am). The trial Court dismissed the plaintiff's suit as he found that he was not the owner of the site, in dispute, as alleged. Though under issue No. 2, it was found that the site, in question, was not a public street, yet in view of the finding under issued no. 1 that the plaintiff was not proved to be the owner of the site, in dispute his suit was dismissed. In appeal, the lower appellate Court maintained the finding of the trial Court under issue No. 1 but came to the conclusion that even if he was not proved to be the owner of the site, in question, yet he was entitled to the relief because the appellant had failed to prove that the site, in dispute, was a public street. Consequently, the decree of the trial Court dismissing the plaintiff' suit was modified and it was declared that the impugned notice was invalid. Dissatisfied with the same, it has come up in second appeal to this Court.

(3.) The Learned counsel for the appellant, contended that under Section 172 of the Act, notice could be issued if the site, in dispute, was a street. According to the Learned counsel, public street includes a street as well and, therefore, the notice under Section 172 of the Act was a valid one.