MUNICIPAL COUNCIL Vs. ASHWANI KUMAR AND ORS.

JUDGEMENT

(1.) THIS is defendant's second appeal against the judgment and decree dated 23.5.2007 passed by District Judge, Hisar, whereby appeal preferred by the present appellant along with another appeal preferred by Madan Lal, have been dismissed and the judgment and decree dated 24.8.2006 passed by Civil Judge (Jr. Division), Hisar confirmed. The suit was filed for permanent prohibitory injunction by respondent -Ashwani Kumar and Smt. Sweety seeking injunction against the present appellant and one Madan Lal on the basis of their title and possession. The trial Court found that they are in legal possession in respect to land measuring Eastern Danda - 66 feet 6 inch, Western Danda - 48 feet 9 inch, Northern Danda - 59 feet 6 inch and Southern Danda - 44 feet 6 inch comprising in Khasra No. 3778 -3789/1 and 3782. The trial Court also held that the plaintiffs are also in unauthorised possession of some of the property. The possession of the respondents -plaintiffs was protected only to the extent of land mentioned hereinabove. No protection was offered in so far as the land where they were found to be in un -authorised possession. The suit was accordingly partly decreed. Both the defendants in the suit filed separate appeals in the Court of District Judge, Hisar. The appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeals vide impugned judgment and decree.

(2.) LEARNED Counsel appearing for the appellant has contended that the land in question belongs to the municipality as the same was taken over in implementation of the Town Planning Scheme framed by the Municipal Committee in the year 1976. He has further relied upon a judgment of the Apex Court in Yogendra v. : AIR1994SC2550 wherein the Apex Court protected the action taken by the respective municipal committees under the Town Planning Scheme for acquisition of land for municipal purposes. However, the Apex Court declared the scheme to be illegal and violative of Article 14. The judgment was made applicable prospectively. It is contended on behalf of the appellant that since the municipality had formulated the scheme, the property belongs to the municipality and the past action of the municipality has been protected. This judgment was delivered on 15.7.1994. Under this judgment, the action taken by the municipality was definitely protected. The Apex Court also observed that settled stated of affairs cannot be unsettled. However, this judgment cannot come to the rescue of the appellant for the simple reason that there is nothing on record to show that the appellant -municipality at any stage, took over the possession of the suit land in implementation of the scheme. There is abundance of evidence on record to establish that the owners of the property remained in actual physical possession of the property. The property was thereafter sold to the plaintiffs by valid sale deeds and plaintiffs were also put in possession in the year 2000. Since the municipality never came in possession of the property in dispute under implementation of any scheme, therefore, it is not entitled to derive any benefit of the judgment of the Apex Court (Supra).