Krishna Devi Vs. Municipality

Krishna Devi vs Municipality

Disposition Appeal dismissed Court Punjab and Haryana Decided Oct 09, 1995

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Citation: sooperkanoon.com/628193
Court: Punjab and Haryana High Court
Judge: N.K. Kapoor, J.
Decided On: Oct 09, 1995
Case Number: R.S.A. No. 2707 of 1985
Subject: Property
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestra...

Key legal issue: Property
Outcome / disposition: Appeal dismissed
Acts & sections: Punjab Municipal Act, 1911 - Sections 182

Parties & Advocates

Appellant / Petitioner

Krishna Devi

Advocate A.K. Mittal, Adv.

Respondent

Municipality

Advocate Ashok Aggrawal, Sr. Adv. and; Rajinder Goyal, Adv. and;Vinod Sharma Adv. for Respondent No. 2

Legal References

Acts: Punjab Municipal Act, 1911 - Sections 182
Reported In: (1996)112PLR530

Excerpt

.....contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of..........any of the courts below. learned counsel for the appellant, however, once again pressed that the matter be got examined by appointing a local commissioner so as, to see, the location of the khokha, according to him, the same is in front the door of the house of the plaintiff. according to the learned counsel for, the appellant, the placement of khokha in front of the entrance of the house interferes with her right of ingress and egress. the lower appellate court examined this very aspect of the matter and has observed that the plaintiff in her pleadings has nowhere alleged that the khokha was. interfering in her right of access to the building. even otherwise, there is no evidence on record to support this assertion of the counsel for the appellant. issues now raised are essentially issues of fact. the courts below on the basis of evidence have come to the conclusion that no such inconvenience is being caused to the plaintiff by permitting the contesting defendant carrying on his business at the site allotted to him by placing a khokha on the municipal land. concededly, the vacant land adjacent to the house of the plaintiff vests in the municipal committee and as per section 182 of the municipal act, the municipal committee is competent to give the same on teh-bazari to any person. thus, i find no infirmity in the conclusion arrived at by the courts. the appeal being devoid of any merit is consequently dismissed.

Full Judgment

N.K. Kapoor, J.

1. This is unsuccessful plaintiffs regular second appeal.

2. Plaintiff filed a suit for permanent injunction restraining the defendant, Municipal Committee from issuing Teh Bazari of Khokha in occupation of Baldev Raj, defendant No. 2, in front of premises bearing No. 4143 situate at Ram Bagh Road, Ambala Sadar/Ambala Cantt. As per averments made in the plaint, it has been stated that the plaintiff is owner in possession of premises No. 4143. Defendant Municipal Committee had been leasing out the site beneath the wooden Khokha to certain persons and finally Baldev Raj, defendant No. 2, was inducted as a licencee in respect of the khokha. According to the plaintiff, the existence of khokha impaired the value and utility of the house which the plaintiff purchased vide sale deed dated 24.3.1982. Hence the present suit.

3. Defendant No. 1 in its written statement has taken the plea that the suit is not maintainable in the present form; that the civil court has no jurisdiction; that no notice Under Section 80 of the Code of Civil Procedure was given before filing the suit. However, the defendant admitted that the khokha in dispute was given on Teh Bazari earlier to Kharaiti Lal, Joti Parshad and Janak Raj and that Baldev Raj has applied for transfer of the Khokha on Teh Bazari in his name. It has further been stated that the Municipal Committee had the right to issue teh-bazari licence without, any hindrance.

4. On the pleadings of the parties, following issues were framed:-

1. Whether defendant No. 1 is not entitled to transfer teh-bazari from Kharaiti Lal etc. to defendant No. 1 as alleged? OPD

2. Whether existence of Khokha in front of the house of the plaintiff has materially impaired the value and utility of the building, if so, its effect? OPD

3. Whether the suit is not maintainable? OPD-1

4. Whether civil court has got no jurisdiction? OPD-1

5. Whether no notice Under Section 80 CPC or under the MC Act has been served upon the defendant No. 1, if so, its effect? OPD-1

6. Whether the plaintiff has got no locus standi to file the suit? OPD-2 7.

7. Relief.

The trial Court on considering the evidence led found no merit in any of the contentions raised by the plaintiff and so dismissed the suit vide judgment and decree dated 13,3.1985.

5. Before the appellate Court challenge was made to the conclusion of the Court of issue Nos. 1 and 2. The appellate Court once again examined the matter, and found no ground to differ with the conclusion arrived at by the trial Court. Resultantly, the appeal too was dismissed.

6. Before me, almost identical pleas have been raised which did not find favour with any of the Courts below. Learned counsel for the appellant, however, once again pressed that the matter be got examined by appointing a Local Commissioner so as, to see, the location of the Khokha, according to him, the same is in front the door of the house of the plaintiff. According to the learned counsel for, the appellant, the placement of Khokha in front of the entrance of the house interferes with her right of ingress and egress. The lower appellate Court examined this very aspect of the matter and has observed that the plaintiff in her pleadings has nowhere alleged that the khokha was. interfering in her right of access to the building. Even otherwise, there is no evidence on record to support this assertion of the counsel for the appellant. Issues now raised are essentially issues of fact. The Courts below on the basis of evidence have come to the conclusion that no such inconvenience is being caused to the plaintiff by permitting the contesting defendant carrying on his business at the site allotted to him by placing a khokha on the municipal land. Concededly, the vacant land adjacent to the house of the plaintiff vests in the Municipal Committee and as per Section 182 of the Municipal Act, The Municipal Committee is competent to give the same on teh-bazari to any person. Thus, I find no infirmity in the conclusion arrived at by the Courts. The appeal being devoid of any merit is consequently dismissed.

Same Court & Year Punjab and Haryana · 1995 Same Parties Krishna Devi vs Municipality Same Subject Property Same Judge N.K. Kapoor, J. Acts & Sections Punjab Municipal Act, 1911 - Sections 182

Property