MUNICIPALITY, BATHINDA Vs. NARAIN SINGH AND OTHERS

JUDGEMENT

(1.) Defeated twice, firstly before Subordinate Judge Ist Class, Bathinda (for short 'the trial Court') and secondly before Additional District Judge, Bathinda (for short the First Appellate Court'), the defendant, Municipality, Bathinda is before this Court by way of the instant Regular Second Appeal under Section 100 of the Code of Civil Procedure (for short 'the Code') to assail correctness of judgment and decree dated 08.10.1987 passed by the trial Court in Civil Suit No. 01 of 14.06.1982 as affirmed, vide judgment and decree dated 22.04.1989, by the First Appellate Court in Civil Appeal (D) No.134 of 16.11.1987. Respondents (plaintiffs before the trial Court) are contesting the appeal.

(2.) I have heard learned counsel for the parties and have also examined the record.

(3.) Learned counsel representing the appellant has strenuously argued that the respondents have encroached upon land belonging to the appellant, which was lying vacant and, as such, are not, at all, entitled to a decree of perpetual prohibitory injunction and thereby stall operation of notices dated 14.08.1980 issued under Section 172(2) of the Punjab Municipal Act, 1911 (for short 'the Act'). To support the contention, learned counsel for the appellant has relied upon the evidence of DW1, Building Inspector Charan Singh, DW2, Building Inspector Bhola Singh and DW3, Draughtsman Raghbir Singh and has attempted to demonstrate that DW1, Charan Singh visited the disputed site on 14.05.1980 and found that the respondents had encroached upon area of pavement to the extent of 113 feet in length and 14 feet and 15 feet in width on both the sides of Mall Road, and has proved on record his report, Exhibit D1, as also order, Exhibit D2, passed by the Executive Officer of the appellant on the basis of report, Exhibit D1, while DW2, Bhola Singh has proved site plan, Exhibit D3 depicting the encroachments and DW3, Raghbir Singh has deposed to say that as per original drawing of Pocket No.6, Mall Road, Bathinda, prepared on 07.05.1975 width of the road on the disputed site was 80 feet and in front of wholesale cloth market the width of the road, including pavements, was 88 feet, 3 inches. Both the Courts below, however, have skipped this very material aspect of the matter, contends the learned counsel, adding that an encroacher of municipal land is not entitled to protection of the Court. Nonetheless, learned counsel appearing for the respondents has defended the judgments and decrees of the Courts below with vigour and has argued that the evidence available on record supports plea of the respondents that they have not encroached upon the land of the appellant and that being so, the notices issued by the appellant under Section 172(2) of the Act for demolition of their shops were illegal and the Courts below have rightly protected the buildings of the respondents.