BALINDER SINGH Vs. IMPROVEMENT TRUST

JUDGEMENT

(1.) THIS regular second appeal has been preferred by the appellant Balinder Singh who was plaintiff before the learned trial Court against the judgment and decree dated 5.6.2010 passed by the learned Civil Judge (Senior Division), Karnal vide which his suit was dismissed with costs and the judgment and decree dated 4.10.2012 passed by the Court of learned Additional District Judge, Karnal vide which the appeal preferred by the appellant against the above said judgment and decree dated 5.6.2010 was also dismissed with costs. The case of the appellant herein (plaintiff) before the learned trial Court in nutshell was that he had purchased a house constructed upon plot No. 18 situated in Randhir Colony, Karnal from one Bimla Rani. The said Bimla Rani had purchased plot Nos. 17 and 18 situated in Randhir Colony, Karnal which was abutting Mugal Canal in the year 1974. Thereafter, she submitted a plan to the Municipal Committee, Karnal for raising construction of residential house over the above -said plots, which was sanctioned in the year 1975. Thereafter, she raised construction over these plots and a portion of these two plots was sold to the plaintiff vide a registered sale deed. He has been in occupation of the disputed house since the year 1987. Then a notice was served upon him on 16.6.1987 by the Municipal Committee to the effect that an area measuring 40' x 65' has been encroached upon illegally which forms part of Mugal Canal. Then he filed a civil suit for injunction in this regard which was dismissed and an appeal filed by him in this connection was also dismissed. Then the Municipal Committee took the possession of that portion from him after removing the alleged encroachment and subsequent thereto, the Municipal Committee sold the same by converting it into seven booths bearing Nos. 423 to 429. It was further case of the plaintiff that in the back side of these seven booths, the property of Bimla Rani and of present plaintiff had been shown by the improvement trust. Thereafter, another notice dated 26.6.2002 was served upon him wherein alleging that he had encroached upon an area forming part of khasra No. 5848 shown to be area of Mugal Canal i.e. 18 feet on northern side, 68 feet towards eastern side and zero feet towards southern side. This notice was challenged by the plaintiff on the plea that the alleged fact of encroachment mentioned in it was not mentioned in the earlier notice dated 26.6.1987. It was further his case that plot No. 19 adjoining the property of plaintiff is owned by Sh. Ishwar Chand Sharma. A notice was also served to him by the Improvement Trust who filed a civil suit in this regard which was decreed in his favour and the appeal filed against that decree was dismissed. Now, a regular second appeal in this regard is pending in this Court. Then it was also the plea that from the decision given in the earlier suit instituted at the instance of Ishwar Chand Sharma, Advocate, it was clear that no encroachment of any part of the land bearing khasra No. 5848 had been made and hence the instant suit.

(2.) ON notice, respondent herein who was defendant before the learned trial Court filed written statement. It was alleged that the land of khasra No. 5848 was got demarcated by the defendant -trust and on demarcation, it was found that the plaintiff had encroached upon the area measuring 68 feet towards east, 68 feet towards west, zero feet towards south and 18 feet towards north of this khasra number. Then it is admitted that earlier also a notice was sent to the plaintiff for unauthorized encroachment who filed a suit for injunction which was dismissed by the trial Court and the appeal filed in this connection was also dismissed. Then the alleged encroachment was got removed. It was further the case of the defendant that subsequently plaintiff and Ishwar Chand Sharma had again encroached upon the part of khasra No. 5848 which fact is clearly established from the demarcation report. As per the claim of the plaintiff, he had purchased 298.3 square yards land from Bimla Rani vide a sale deed but at present he is in possession of more area than the area purchased by him vide this sale deed. The above -said Ishwar Chand Sharma had also encroached upon part of khasra No. 5848 and a matter in this regard is still pending before this Court. Moreover, the present plaintiff could not be permitted to take advantage of the judgment in a civil suit pertaining to Ishwar Chand Sharma since the claim qua the suit land is to be determined independently in the light of pleadings as well as the evidence produced by him.

(3.) BEING aggrieved from the findings recorded by both the Courts below vide the impugned judgments and decrees, the appellant -plaintiff approached this Court by filing the instant regular second appeal.