RAGHBIR SINGH Vs. SUBHASH

JUDGEMENT

(1.) THE plaintiff having failed in both the courts below, has filed the present appeal. The suit filed by him for mandatory injunction directing defendant No. 1 -respondent for removing the construction raised by him as shown in blue colour in the site plan produced on record which, according to the appellant, is a public street, was dismissed. Both the courts below having not found merit in the submissions made by learned counsel for the appellant while appreciating the material produced on record by him rejecting his claim.

(2.) LEARNED counsel for the appellant submitted that the trial court has failed to frame proper issues. In the case in hand, the defence of the respondent had been struck off as he did not file written statement, but still the suit filed by the plaintiff has been dismissed. The plaintiff had produced a site plan on record, which clearly established that the place where the respondent -defendant No. 1 had raised construction was a public street. The same was prepared by the counsel for the appellant. In addition thereto, a site plan prepared by an official of the Municipal Corporation was also produced on record, which also established that the area encroached was part of public street. The respondent had not been able to establish from any material produced by him on record that the area where he had raised construction was purchased by him. It was the best evidence available with him, which he failed to produce on record, on account of which adverse inference was required to be taken against him. The issue is whether the respondent -defendant No. 1 had encroached a public street. The appellant was not claiming any relief for himself. It was in public interest.

(3.) ANOTHER site plan (Ex. PW2/6) has been produced by the appellant. It has been prepared by officials of the Municipal Corporation. It is also in the form of a rough sketch prepared by Pardeep -Senior Draftsman and Kulbir Singh -Surveyor while visiting the spot. The sketch plan shows the existing status. No authentic record from the Municipal Corporation was produced showing as to where a public street exists and which of the property is owned by the parties and the area thereof. The site plan (Ex. PW2/6) was produced by Vinod Kumar -Tax Clerk in the office of Municipal Corporation. He was not the person, who had visited the spot and prepared the plan. The court had specifically asked the witness to produce the record showing the public street, however, it was stated that the record was not available. As despite availing sufficient opportunities, the plaintiff had failed to lead his evidence, the same was closed by order of the court. It was a suit filed by him on 16.7.1998, where the evidence of the plaintiff continued till 30.1.2008. It seems that it was a fight of ego more than anything else.