High Court of Punjab and HaryanaCR/1469/2025dismissed

Municipal Corporation , Gurugram v. Dushyant Kumar And Others

2025-07-15Mr. Justice Vikas Bahl21 pages

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Whether Raja Rati was owner of plot in dispute and hold the same to plaintiff vide sale deed dated 7.12.64 as alleged? OPP 2.

Whether plaintiff is owner in possession of suit property described in para no.1 of the plaint?OPP 3.

Whether order dated 19.8.2002 passed by defendant no.1 and order dated 26.11.2002 passed by defendant no.2 are void(incorrect, illegal and liable to be set aside as alleged? OPP 4.

Whether there is no cause of action to file the present suit?OPD 5.

Whether plaintiff is estopped from filing the present suit by his own act and conduct? OPD 6.

Whether plaintiff has no locus standi to file the present suit? OPD 7.

Whether suit is bad for non joinder of parties?OPD Whether suit has been properly valued for the purpose of court fees ? OPD 9.

Whether the suit property is open space as per TP scheme no.3 of Gurgaon as alleged? OPD 10.

Relief."

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32.

In view of my findings on issue no.l above, suit of the plaintiff is decreed. The impugned orders dated 19.8.2002 and 26.11.2002 passed by defendants are declared illegal, null and void and as a consequential relief defendant no.1 is directed to sanction the site plan of the plaintiff in accordance with provisions of law. The defendants are further directed to remove the construction raised over the suit property during pendency of the suit. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.

Announced.

23.11.2010"

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&$& -&8% 2! "16. On the other hand, defendants examined six witnesses. DWI Vijender Singh, Assistant Town Planner, Gurgaon

deposed that the Government of Haryana has sanctioned Town Planning Scheme No.3. He further stated that the original drawing of said scheme is not available in the office. He also submitted that the letter of Haryana Government vide which the said scheme was sanctioned is also not available in the office. In his cross examination he stated that he has no knowledge about implementation of Town Planning Scheme no.3."

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& &$& -&8% 2! "24. I have given thoughtful consideration to the arguments advanced by the both the sides. At the outset I may observe that it is admitted case of the parties that Raja Rati Ram was

owner in possession of suit property It is also pertinent to note that as per sale deed of suit property which is Ex. P10 which is duly proved by the plaintiff and PW4 Bhupender Singh, PW5 Satya Narain Aggarwal, PW6 Harish Kumar and PW7 B.B.Sharma, Advocate the plaintiff purchased the suit property from Raja Rati Ram. It is further noteworthy that the plea of defendants regarding implementation of Town Planning Scheme no.3 has already been rejected by Ld. First Appellate Court in Civil Appeal bearing no. 34 of 25.9.1986 titled as Municipal Committee Vs. Sharu Ram vide Judgment Ex. P19 in which it was observed that 'the Town Planning Scheme no.3 was never acted upon or enforced by the Municipal Committee'.

It is also relevant to note that in that case also the Municipal Committee had taken the plea of suit property being reserved for open space in the Town Planning Scheme no.3 It is further pertinent to mention that the above=said judgment vide which averment of Municipal Committee regarding implementation of Town Planning Scheme no.3 was rejected has become final as no further appeal was filed by Municipal Committee against the same. In given circumstances when the plea of Municipal Committee with respect to implementation of Town Planning Scheme no.3 has already been considered and rejected by competent court and said decision has attained finality, the Judgment Ex.P19 is relevant for just decision of this case u/s 13 of Indian Evidence Act. In taking this view I am fortified by law laid down in Tirumala Tirupati Devasthanams Vs. K.M.

Krishanaiah (Supra) and S.Govindarasu Udayar Vs. Pattu & Others (Supra). Consequently the defendants evidence regarding sanction of Town Planning Scheme no.3 and its subsequent implementation is not reliable. Thus the plaintiff is owner in possession of suit property by virtue of sale deed Ex P10.

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xxx 26.

Before parting with the discussion on the issue I may also observe that during the pendency of the suit the plaintiff filed an application under order 39 rule 1 & 2 CPC seeking to restrain the defendants from ousting the plaintiff from the suit property by raising construction. At that time the Ld. Counsel for the defendants has given oral undertaking that in case plaintiff succeeds in the suit the construction of boundary walls which was being raised by the defendants will be removed. Therefore, in given scenario and in view of findings given above, the defendants are also liable to remove the construction raised by them at the site during pendency of the suit. Accordingly issues no.1 to 3 are decided in favour of plaintiffs while issue no.9 is decided against the defendants." # # %

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Thus the appellant has miserably failed to show the existence of scheme no.3 or that it was implemented or to connect that suit plot falls under scheme no.3 meant to kept as open space. Here, I would also like to refer to Ex.P(9 wherein suit plot has been shown with red colour and land of Sharu Ram is shown on the Eastern side just across 20 feet gali. Admittedly Sharu Ram has been able to show before the civil court that his land does not fall in scheme no.3. On the North Eastern side of the suit land houses have been shown constructed and at the front and back side of plot of Sharu Ram as well as suit plot added with the law of adjoining plot roads are shown situated. On what basis Municipal committee is claiming this 250 sq. yards of land to be part of their scheme, has not been explained. Therefore no illegality can

be found with the findings of trial court that suit plot does not fall in the scheme no.3 and the learned trial court has rightly set aside the impugned orders dated 19.8.2002 and 26.11.2002 and it has rightly granted mandatory relief directing defendant to sanction the site plan, Learned Trial court has rightly directed the appellant to remove the boundary wall so as to restore the position of suit property at status quo ante"

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There is no dispute that the land initially belonged to Raja Rati Ram who executed a sale deed in favour of the respondent which is Ex P=10. The sale deed has duly been proved by PW4 Bhupinder Singh, PW=5 Satya Narayan Aggarwal, PW=6 Harish Kumar and PW=7 B.B Sharma. The argument that the land falls within Town Planning Scheme no. 3 has been rejected by both the courts below by taking into consideration the judgment rendered in Civil Appeal No 34 of 25.9.1986 titled Municipal Committee Vs Sharu Ram, where in similar circumstances the first Appellate Court had

noted that Town Planning Scheme no. 3 had never come into existence nor had it been acted upon. No appeal has been filed against the said judgment, nor has the counsel for the appellant been able to show that the Town Planning Scheme no. 3 had ever been implemented.

10.

It is also noted that there is no evidence on the record that the appellant herein has taken over the land and under which provision of law. Merely by stating that the plot is a vacant piece of land as per the record relating to sanctioning of the Scheme and it vests with the appellant would not suffice when there is a sale deed on the record Ex P=10 in favour of the respondent duly executed by the owner of the land. Both the witnesses as produced by the appellant i.e DW= 5 and DW=6 have admitted in the crossexamination that they have not seen any document vesting the land with the Municipal Corporation. Based on the evidence, the Courts below rightly came to the conclusion that the Town Planning Scheme no. 3 was never implemented nor is there any record showing the land vested with the Municipal Corporation." # **'

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Nevertheless, we have heard learned counsel for the petitioner and learned counsel for the caveators. We do not find any merits in special leave petition. The same is

dismissed both on the ground of delay as well as on merits. Pending application(s), if any, shall also stand disposed of."

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At the outset, it is pertinent to mention here that the decree(holder has sought the execution of decree passed on 23.11.2010, which has attained its finality. Thereafter, the appeal was filed by the Jds which was also dismissed on 12.03.2012. Subsequently, RSA was filed by JDs which was also dismissed on 22.08.2019. Then SLP was filed by the JD, it was dismissed on 21.08.2023 by the Hon'ble Supreme Court of India. Moving further, one Kuldeep Sharma had draftsmen of MCG appeared on 17.03.2013 before the ld. Predecessor Court and made a statement to the effect that Jds will obey the order of Court and will sanction the site plan and will remove the construction existing on the suit property which was made during the pendency of the suit. It shows that judgment dated 23.11.2010 has attained its finality till the Apex Court. Further, this Court is of the considered

opinion that the objections which are taken by the JD No.1 are pertaining to the merits of the main case which has already been adjudicated till Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India has dismissed the SLP on merits as well as on the ground of limitation. Further, perusal of the judgment and decree dated 23.11.2010 shows that the implementation of town planning scheme No. 3 has already been rejected by the Competent Court. Moveover, it is the settled law that the executing Court cannot go beyond the decree passed by the trial Court. It has to execute the decree as it stands, for the decree is binding and conclusive between the parties to the suit. Resultantly, objections are dismissed being devoid of merits.

Pronounced in open Court:

Dated: 09.01.2025"

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Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be

"an appeal in disguise."

10.

Considered in the light of this settled position we find that Sharma, J. clearly over(stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observation of Sharma, J. that "accordingly", the order in question is reviewed and it is held that the decree in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided" and as such the case was covered by Article the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.

1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not of such a nature, "Which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings, to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review of the order of petition.

In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997."

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27.

Production of additional evidence in Appellate Court-

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

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