G.C. Garg, J.@mdashPlaintiff Kamlesh Jindal filed a suit for perpetual injunction restraining he Municipal Corporation of Ludhiana from interfering in her possession over plot measuring 119 Sq. yards situated in Prem Nagar, Ludhiana, on the allegations that she was the owner in possession thereof having purchased from M/s. Sadhu Ram Bal Kishan through registered sale deed dated 28th June, 1975. It was alleged that the plot was carved out from an area measuring 6 bighas 7 biswas and the vendors had provided a lay out plan in that area before selling the plots that most of the vendees who purchased plots have already raised construction. The defendants tried to lay out a public street on the plot in dispute and on being objected they did not listen. It was further alleged that no notice had been served on the respondent before declaring this property as a public street and that no valid acquisition was made for the purpose of laying out the street.
2. The suit resited by the defendant Municipal Corporation on the plea that no plot existed on the site according to their record and rather there existed a street of 20'' width as provided in the Town Plan Scheme duly sanctioned by the Punjab Government i the year 1955. The further case of the defendants was that the scheme was validly drawn after inviting objections and it was finalised and sanctioned by the Government and the owners of the land falling under the street ceased to be the owners thereof.
3. on the pleadings of the parties, the following issues were framed :
1. Whether the plaintiff is the owner in possession of the suit property ? OPD
2. Whether there is town planning scheme prepared by the defendants and the suit property is part of the plot ? OPD
3. Whether the plaintiff is entitled to the injunction ? OPD
4. Whether there was a valid town planning scheme and the suit property has not been declared as street in that scheme ? OPD
5. Relief.
4. The trial Court vide judgment and decree dated 3rd October, 1977 dismissed the suit but the lower appellate Court, on appeal set aside the judgment and decree of the trial Court and decreed the plaintiff''s suit. It is against this judgment and decree of the first appellate Court that the present appeal has been filed by the defendants.
5. The learned Additional District Judge after appreciation of entire evidence found that the property under the disputed plot was not proved to be a part of public street as the appellantCorporation did not produce the property register require to be maintained under section 56(3) of the Punjab Municipal Act showing the property in dispute to be a part of the public street or that the land had vested in the Municipal Committee under the Scheme framed under section 192 of the Act ibid. It was also found that no survey plan had been produced and that the alleged street claimed by the Municipal Committee as a pubic street was shown as absolutely straight in Exhibit D. 4 which was prepared by the defendants according to site, the road was shown in curve position B 1 to B 2 in Exhibit D. 4 which was prepared by the defendants according to site, the road was shown in curve position and there was nothing on the record to prove that plan Exhibit D. 2 stood amended. It was thus, concluded that the disputed plot did not in any way form part of the public street.
6. The counsel for the appellant strenuously argued that in the plan Exhibit D. 2 which is a sanctioned plan of unbuilt area under Section 192 of the Act ibid it is clearly shown that the land underneath the plot of the plaintiff was a part of the public street and thus, the plaintiff had not right to encroach upon the same or to raise construction. The Municipal authorities were well within their rights to lay a road on the lane shown as public street in the site plan Exhibit D.2. The learned counsel for the appellant further submits that nonmentioning of the street in the register required to be maintained under section 56(3) of the Act ibid was not material once it is shown that it formed part of the street in sanctioned plan of unbuilt area in Exhibit D. 2.
7. I have considered the submissions made by he learned counsel and do not find myself in agreement with the same. Exhibit D. 4 is a site plan of this very area prepared by the defendants and produced on the record. As observed by the learned Additional District Judge, a road of 20'' width has been shown in Exhibit D.2 which is a straight road but on the spot as is apparent from plane Exhibit D. 4, this straight road does not exist and houses have already been allowed to be built indiscriminately without having regard to the alleged public street shown in Exhibit D. 2. It seems apparent that the defendant now want to change the course of public street as has been shown in Exhibit D.2 by making use of whatever vacant land of the owners existing at the site and trying to make the street curved instead of straight as is shown in Exhibit D. 2. This, to my mind, could not be done. Once the street as shown in Exhibit D. 2 was blocked on certain points without an objection from the Municipal Corporation, it cannot stop the plaintiff from making use of the land purchased by her for raising construction. The alignment of the street has not been shown to have been changed by a competent authority at no point of time and thus the street has been urged and the plaintiff could not be put to disadvantage. There is no street bifurcating the block of the house in which the plot of the plaintiff exists though in the original plan Exhibit D.2, the block has been bifurcated by street. None of the neighbours has objected to the plaintiff from raising construction on the plot purchased by her. In this view of the matter, it is not open to the defendants to show that though a part of the street has been allowed to be closed, yet the street exists in so far as the plaintiff is concerned. In my opinion, the defendants have totally failed to show that there existed a public street at the site where the plaintiff has purchased the plot or that the plot purchased by her forms part of the public street. The alignment of the street could not be altered at the whim of any officer and a resolution of the concerned Corporation for that purpose was absolutely necessary to be passed after notice to the owners whose plots abut on that street and the persons whose land was to have been (sic) issued to the landowners at the time of framing of the scheme does not mention the names of the predecessorsininterest of the plaintiff though it mentions the names of certain other landowners.
8. No other point was urged before me.
9. Consequently, the appeal fails and is dismissed but with no order as to costs.
