Hon'ble Akhtar Husain Khan,J.
(Delivered by Hon. Akhtar Husain Khan,J.) Above two appeals have been filed under section 96 of C.P.C. against the judgement and decree dated 19.10.2004 and 1.11.2004 respectively passed by learned Additional Civil Judge (Senior Division), Court No.1, Ghaziabad in Original Suit No.857 of 1991 (Pushpa Builders Limited Vs. State U.P. and another), whereby learned Additional Civil Judge (Senior Division), Court No.1, Ghaziabad has decreed the aforesaid suit of plaintiff Pushpa Builders regarding plots no. 268/3, 277/1, 268, 277, minjumla 274, 275, 283, 284, 285, 276 and 283 and has granted prohibitory injunction against defendants to the effect that if the plaintiff-appellant obtains no objection certificate from competent authority of P.A.C. regarding the security of armoury and jawans and makes constructions within the limits of said plots the defendants shall not cause any obstruction or hindrance and shall not take possession of the said plots unlawfully.
Being aggrieved by the judgement and decree passed by learned Additional Civil Judge (Senior Division), Court No.1, Ghaziabad the plaintiff Pushpa Builders has filed above Appeal No.451 of of 2013 (Pushpa Builders Limited Vs. State of U.P. and another) and has prayed to issue absolute prohibitory injunction removing condition of no objection of competent authority of P.A.C.
The above Appeal No. 246 of 2009 (State of U.P. and other Vs. Pushpa Builders Limited) has been filed by the defendants- State of U.P. and the Commandant 41, Battalion, P.A.C., Ghaziabad with prayer to set aside the judgement and decree passed by learned Additional Civil Judge (Senior Division), Court No.1, Ghaziabad and to dismiss the suit.
Shri K.R. Sirohi, senior counsel assisted by learned counsel Shri Uma Nath Pandey appeared for plaintiff. Shri S.K. Mehrotra and Shri R.K. Chaube appeared for the defendants.
We have heard the counsel for the parties in both the appeals.
We have perused impugned judgement and decree as well as records of the case.
In brief relevant facts for decision of both appeals are stated below.
The plaintiff Pushpa Builders Limited has filed aforesaid Original Suit No.857 of 1991 (Pushpa Builders Limited Vs. State of U.P. and another) against defendant no.1, State of U.P. and defendant no.2 the Commandant, 41 Battalion, P.A.C. Ghaziabad for permanent prohibitory injunction regarding 'land of'' plot nos. 268/3 area 12 biswa, 277/1 minjubla area 14 biswa total area 1 bigha 6 biswa of Khasra no.76, plot no. 268/3 minjubla area 12 biswa, plot no. 277 minjubla area 14 biswa of khatauni no.139 and plot nos.274 area 6 biswa, 275 area 4 biswa, 283 area 16 biswsa 12 biswansi, 284 area 6 biswa, 285 area 1 bigha 18 biswa of khatauni no.233 and plot nos. 276 and 283 area 4960 square yards situated in Village Hasanpur Bhowapur, Pargana Loni, Tehsil Dadri, District Ghaziabad and has contended that he had purchased these lands through various registered sale deeds executed by Sardar Swarnjeet Singh, Manjeet Singh, Sita Ram, Shri Jasal Singh, Rohtash Magchandra and Nand Kishore and that his name has been mutated in the revenue records. He has started construction work on the said lands after obtaining sanction of plan from Ghaziabad Development Authority. He has also obtained no objection certificate from Ghaziabad Development Authority as well as from Fire Station, Ghaziabad. The defendant no.2 has also given no objection certificate for the said construction. His labourers are residing on the said lands. The defendants have no concern with the above land but are pressurising the plaintiff to accept their illegal demand. The plaintiff is not ready to accept their illegal demand. Therefore, they are threatening to take possession of above land forcefully and unlawfully and to demolish construction made by the plaintiff thereon. Therefore, plaintiff has no option but to file the suit for permanent prohibitory injunction.
Both defendants filed joint written statement 33-Ka before the trial court and denied the allegations made in the plaint. Both defendants contended in their joint written statement that no objection certificate, which had been given to plaintiff was for poultry farming and not for building construction. They have further contended in their joint written statement that the plaintiff is making construction on their land (defendants land) as such he has no right to make construction on the disputed land. The defendants have further contended that the disputed construction being made by the plaintiff shall cause danger to security of armoury and jawans of defendant no.2.
Both defendants have further pleaded in their joint written statement that the suit is barred by Section 80 of Civil Procedure Code.
On the pleadings of both the parties, learned trial court framed following issues.:
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8.oknh] izfroknhx.k ds fo:) fdl izfrdkj dks ikus dk vf/kdkjh gS\^^ The plaintiff examined P.W.1 V.K. Soine and P.W.2 Vikram Singh to prove his case, while defendants filed affidavit of D.W.1 Kunwar Pal Singh in evidence under Order XVIII Rule 4 of Civil Procedure Code. Both the parties filed some documentary evidence also before the trial court.
After considering evidence of both parties, learned trial court decided issue nos. 1, 2 and 3 in affirmative in favour of the plaintiff. In determination of issue no.4, learned trial court has come to conclusion that the plaintiff has no right to make construction on the disputed land without obtaining no objection certificate of the defendants and decided this issue against plaintiff. Learned trial court decided issue no.5 also against plaintiff and came to conclusion that the disputed construction may cause danger to the security of armoury and jawans.
Learned trial court decided issue nos. 7 and 8 in favour of plaintiff and held that the suit for injunction was maintainable, but in view of the finding on issue nos. 4 and 5, the plaintiff was entitled to get conditional prohibitory injunction. Therefore, learned trial court decreed the suit of permanent injunction but granted conditional prohibitory injunction as mentioned above.
Learned counsel for the plaintiff-appellant has contended before us that learned trial court has committed a mistake in granting conditional prohibitory injunction. The condition imposed by trial court is against law because no objection certificate of defendants was not required under any provision of law.
Learned counsel for the plaintiff-appellant has further contended that the condition imposed by the trial court should be set aside and absolute prohibitory injunction should be granted.
Learned counsel for the defendants has contended that the judgement and decree passed by the trial court is against law and self contradictory.
Learned counsel for the defendants has further contended that in determination of issue nos. 1, 2 and 4, the trial court has clearly held that the plaintiff had made encroachment on the land of the defendants. Therefore, no injunction could be granted in favour of the plaintiff.
Learned counsel for the defendants has further contended that construction in dispute may cause danger to security of armoury and jawans.
Learned counsel for the defendants has contended that the impugned judgement and decree passed by the trial court should be set aside and the suit should be dismissed.
We have considered submissions made by both parties.
Following points arise for determination in the present two appeals.
(I) Whether the trial court has committed an error in granting conditional prohibitory injunction and the condition imposed by the trial court should be removed?
(2) Whether the judgement and decree passed by learned trial court is against law and is liable to be set aside?
(3) Whether the suit filed by the plaintiff is liable to be dismissed?
Finding Learned trial court in its judgement has decided issue nos1 and 2 jointly and while determining these two issues, learned trial court has recorded a finding that the plaintiff himself had made encroachment on a portion of the land of the defendants, but inspite of it trial court has decided issue nos.1 and 2 in favour of the plaintiff on the ground that the plaintiff has right to possession on the land which he has purchased through registered sale deeds. Learned trial court while deciding issue no.4, also has recorded a finding that plaintiff had made some construction on the land of the defendants as apparent from Amin's report. In determination of issue no.4 learned trial court has mentioned that it is not apparent as to what extent the plaintiff has made construction on the land of the defendants but in any case the plaintiff had no right to make any construction on the land of the defendants. Learned trial court decided issue no. 4 accordingly in favour of the defendants and held that plaintiff had no right to make construction without obtaining no objection certificate from the defendants.
Learned trial court in determination of issue no.5 has recorded finding that the construction of multi story building being made by plaintiff on the disputed land may cause danger to the security of Armoury and jawans. Therefore, plaintiff should obtain no objection certificate from the concerned department/defendants for making disputed multi story building.
Learned counsel for the plaintiff-appellant has submitted that finding recorded by trial court regarding encroachment made by the plaintiff-appellant on the land of the defendants is without evidence and against law. He has contended that the said finding of encroachment is on the basis of Amin report which has not been confirmed by the trial court. Therefore, finding recorded by the trial court regarding encroachment on the land of defendants should be set aside or should be ignored.
We have considered the submission made by the learned counsel for the plaintiff-appellant.
Perusal of the plaint shows that plaintiff has filed the suit for permanent prohibitory injunction regarding aforesaid plots and he has not given any site plan of the disputed land.
Perusal of the written statement filed by the defendants shows that in para 2 of the written statement, defendants have clearly asserted that plaintiff has not given any site plan of land regarding which they are claiming their rights and on spot there is no existence or demarcation of khasra plots purchased by the plaintiff. In para 2 of the written statement the defendants have further alleged that the plaintiff has taken possession of land of defendants. In para 22 of the written statement also defendants have clearly contended that plaintiff is making construction on the lands of the defendants.
From perusal of pleadings of both parties it is apparent that defendants have not denied title of plaintiff on aforesaid khasra plots alleged to have been purchased by plaintiff through registered sale deeds. The only dispute between the parties is that as to whether disputed lands lies in khasra plots of plaintiff or in the plots of defendants.
Section 102 of the Evidence Act provides " the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side"
In Anil Rishi Vs. Gurubaksh Singh, A.I.R. 2006 S.C. 1971, Hon'ble Apex Court has held that "in terms of Section 102 the initial onus is always on the plaintiff and, if he discharge that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
In the case of Bharat Aluminum Company Vs. Maharashtra Alumnium Company Limited and Maharashtra Aluminum Corporation, 2009 (80) A.I.C. 304 (310), Delhi High Court has also expressed same view.
Thus, in view of Section 102 of the Evidence Act as well as the aforesaid judicial pronouncements, it is apparent that the initial burden is on the plaintiff to prove that the disputed lands lies in khasra plots of plaintiff alleged to have been purchased through registered sale deeds. Admittedly on record there is neither any survey map nor site plan on scale.
Perusal of the amin report dated 23.2.1998 shows that fixed point of khasra nos. 93, 94, 96, 244 and 292 were not found on the spot. Therefore on the advice of halka lekhpal measurement work was done by taking fixed point of a well located in khasra no. 981/433 and in such measurement total area of land in possession of plaintiff was found 24154 square yards while total area of plaintiff is 21000 square yards according to sale deeds. In addition to it on measurement of plot no.268 it was found that 97 square yards land of P.A.C. is in possession of plaintiff.
Plaintiff has filed objection against said report of Amin. Learned trial court has considered objection of plaintiff and passed order on 18.3.199 in this regard. Learned trial court in its order dated 18.3.1999 called supplementary report from Amin.
In compliance of trial court order Amin filed supplementary report. In his supplementary report Amin has clearly mentioned that no fixed point was found on the spot, therefore, he could not do survey work. He has further mentioned in his supplementary report that he has made measurement on the spot as directed by halka lekhpal and defendant no.2. In view of supplementary report filed by Amin, report Amin dated 23.2.1998 appears unreliable. But no other survey map or site plan on scale was brought on record by both parties. Therefore, the plots claimed by plaintiff are unidentifiable on spot.
In written statement defendants have clearly stated that plaintiff is making construction in defendants' land. D.W.1 Kunwar Pal Singh, Sub-Inspector has stated in para 3 of his affidavit that disputed land is khasra plot no. 268/2 area 9-6-0, and plaintiff has made encroachment on 97 square metres of this land. D.W.1 Kunwar Pal Singh, Sub Inspector has further stated in para 5 of his affidavit that plaintiff has illegally occupied 3025 square yards land of gram samaj.
Before trial court plaintiff has examined P.W.1 V.K. Soine and P.W. 2 Vikram Singh to prove his case, but neither of the said two witnesses has specifically denied that the plaintiff has not made any encroachment on the land of the defendants or gram samaj.
In view of discussion made above and after having considered whole evidence on record, we are of the opinion that plaintiff has totally failed to prove that the disputed land lies in his aforesaid plots purchased through registered sale deeds. Therefore, trial court has committed error in deciding issue no.1 regarding ownership of disputed land in favour of plaintiff. Hence finding recorded by trial court on issue no.1 in modified and said issue no.1 is decided in negative against plaintiff-appellant.
Finding record by trial court on issue no.2 is also erroneous in view of conclusion drawn in this judgement on issue no.1. Therefore, finding recorded by trial court on issue no.2 is also modified and issue no.2 is decided against plaintiff.
In view of conclusion drawn in this judgement on issues no.1 and 2 finding of trial court on issue no.4 is also erroneous. Therefore, finding recorded by trial court on issue no.4 is also modified and issue no.4 is decided against plaintiff.
In para 23 of the written statement defendants have asserted that construction on disputed land may cause danger to the security of armoury and jawans because the armoury is situated within 50 yards of the disputed land and field for training of jawans is situated within 20 yards.
Rule 5 of U.P. (Regulation of Building Operations) Directions, 1960 is as follows:-
"Rule 5- Land adjoining Government Property. In case of an application pertaining to land within 100 feet of the property or road maintained by the Public Works Department, Military Irrigation or any other Government Department, or belonging to a Railway Administration, the application shall be in duplicate and the plans in quadruplicate. One copy of application and plans shall on receipt be forwarded by the Prescribed Authority to the officer-in-charge of the department concerned for report before permission is granted and such officer shall report to the Prescribed Authority within thirty days from the date of receipt of the copy of the application whether or not he has any objection to the proposed department of land or construction".
Above Rule 5 of U.P. (Regulation of Building Operations) Directions, 1960 makes it clear that for construction on the land within 100 feet of the property of government department no objection of said government department shall be obtained by prescribed authority. Therefore, keeping in view the security of armoury and jawans and said provisions of Rule 5 of Uttar Pradesh (Regulation of Building Operations) Directions, 1960, no objection of defendants appears necessary for permitting construction on the disputed land.
Learned counsel for the plaintiff-appellant contended that aforesaid regulation is not applicable on disputed land because disputed land is within limit of Ghaziabad Development Authority where provisions of Ghaziabad Development Authority Area Building Regulations, 2002 is applicable.
We have considered this argument advanced by learned counsel for plaintiff-appellant.
The Uttar Pradesh (Regulation of Building Operations) Directions, 1960 has been issued in pursuance of Section 14 of the Uttar Pradesh (Regulation of Building Operations) Act 1958 and entry (iii) of Rule 1 of this direction is as follows:
"(iii) The provisions contained in these Directions shall be in addition to the provisions of any building by-laws of any local authority constituted with the Regulated Areas".
Section 14 of the Uttar Pradesh (Regulation of Building Operations) Act 1958 has been omitted by the Uttar Pradesh Act No. 41 of 1976.
In the case of Bhagat Ram Sharma Vs. Union of India, A.I.R. 1988 S.C. 740, Hon'ble Supreme Court has held that "the legislative practice in India shows that 'omission' of a provision is treated as amendment which signifies deletion of that provision and is not different from repeal".
Section 6 of General Clauses Act, 1897 deals with effect of repeal. Section 6 of General Clauses Act, 1897 and its entry (b) are as follows:
"Section 6. Effect of repeal. -Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not" -
(a)....
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) ----
(d) ------
(e) ------
In view of principle enacted in entry (b) of Section 6 of the General Clauses Act, 1897 it is apparent that the Uttar Pradesh (Regulation of Building Operations) Directions, 1960 shall remain operative even after Section 14 of the Uttar Pradesh (Regulation of Building Operations) Act, 1958 has been omitted by U.P. Act No. 41 of 1976.
Perusal of Ghaziabad Development Authority Area Building Regulations, 2002 shows that there is nothing to preclude application of directions contained in the Utttar Pradesh (Regulation of Building Operations) Directions, 1960. Therefore, the provisions contained in the Directions of 1960 shall be in addition to the provisions of any building by laws of any local authority.
In view of discussions made above, we are of the view that the U.P. Regulation of Building Operation) Directions, 1960 is still operative and directions contained in it are in addition to the provisions of Ghaziabad Development Authority Area Building Regulation 2002. Therefore, no objection certificate of defendants appears necessary for permission to make construction on the disputed land in view of above Rule 5 of U.P. Regulation of Building Operation) Directions, 1960. Therefore, in determination of issue no.5 learned trial court has rightly held that no objection certificate of defendants should be obtained for construction of multi story building on disputed land. No objection certificate dated 3.5.1988 given by defendant no.2 does not show that it has been issued for construction of multi story building.
In the case of (1996)8 SCC 259, Hon'ble Supreme Court has held that a trespasser cannot claim injunction against the owner.
In the case of Daulat Ram Vs. Gopal Krishna Balodi; A.I.R. 2010 Uttarakhand (9), Hon'ble Uttarakhand High Court has held that when the plaintiffs have themselves occupied the land of the defendants and sought injunction by confusing the Courts by mentioning that plaintiffs' father was recorded tenure holder of plot no.40, it cannot be said that they (plaintiffs) have come with clean hands and as such, they were not entitled to the relief of injunction sought by them against the defendants.
Discussions made above, clearly shows that defendants have clearly asserted that plaintiff has made encroachment on the land of the defendants and gaon samaj and plaintiff has failed to prove by procuring survey map that disputed land lies within the limit of his khasra plots mentioned above. Therefore, in view of discussions made above and finding recorded by this Court in this judgement regarding issues no. 1, 2, 4 and 5 framed by trial court in original suit, the plaintiff is not entitled to prohibitory injunction claimed. Therefore, the suit of plaintiff should be dismissed.
For reasons recorded above, points no. 2 and 3 for determination framed in these appeals are decided in affirmative and in favour of defendant-appellants. Point no.1 for determination is decided accordingly against plaintiff-appellant.
In view of conclusion drawn above, we are of the opinion that First Appeal No.246 of 2009 State of U.P. and another Vs. Pushpa Builders Limited should be allowed. The impugned judgement and decree passed by trial court should be set aside and suit of the plaintiff should be dismissed. Hence First Appeal No.246 of 2009 State of U.P. and another Vs. Pushpa Builders Limited is allowed. The impugned judgement and decree dated 19.10.2004 and 1.11.2004 passed by learned Additional Civil Judge (Senior Division), Court No.1, Ghaziabad in Original Suit No.857 of 1991 Pushpa Builders Limited Vs. State of U.P. and another is set aside and the said suit is dismissed.
In view of above, First Appeal No.451 of 2013 Pushpa Builders Limited Vs. State of U.P. and another filed by plaintiff-appellant should be dismissed. Hence First Appeal No.451 of 2013 Pushpa Builders Limited Vs. State of U.P. and another is dismissed.
In the peculiar circumstances of these appeals, parties shall bear their own costs in original suit as well as in appeals.
Date:2.5.2014 R.U.