Amar Nath vs Beli Ram and Another

Ashok Bhan, J.—This is planintiffs appeal. Suit of the Plaintiffs was decreed by the trial Court but the judgment was reversed by the first appellate Court. The facts as stated in the plaint are as under.

Plaintiffs alleged that they are in possession of plot shown as ABCD in the site plan attached with the plaint. A room for residence was constructed by them. The plot was alleged to be evacuee property for which they have already moved to the Rehabilitation authorities for its transfer in their names. It is alleged that since they ,lid not support Sh. Kharati Lal Ex. President of the municipal committee in election, therefore, in order to take revenge upon them Kharati Lal leased out the plot in dispute shown as EFGH in the site plan to Defendant No. 1. It was alleged that the plot EFGH is situated between the metalled road and the municipal drain and the same is a part of public street and the Municipal Committee had no authority to lease out it to Defendant No. 1. Later on Defendant No. 1 started raising construction over the plot EFGH and thereby the passage of the Plaintiffs from their houses to the municipal road was blocked. The present suit for permanent injunction restraining Defendant No. 1 from raising, any construction over the site in dispute was filed. In the alternative, it was pleaded that If Defendant No. 1 has bet n able to raise some construction over the site in dispute during the pendercy of the suit, a decree for mandatory injunction ordering him to remove the construction be passed.

Defendants put in appearance and denied that the site in dispute EFGH is a part of public street. Technical objections regarding the valuation of the suit for purposes of court fee and jurisdiction and maintainability of tie suit in the present form were taken. It was also pleaded that the site in dispute had been leased out by the Municipal Committee to Defendant No. I registered lease deed dated 4-7-1973 for a period of nine year. Lease money upto 31-3-1974 is stated to have been deposited by Defendant No. 1 with Defendant No. 2,

On the basis of pleadings of the parties, the trial Court framed the following issues:

Whether the site of dispute is part of the public street, if so, to what effect? OPP

Whether the suit has not been properly valued? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the Municipal Committe was competent to lease out the property in dispute to the Defendant No. 2? OPD

Relief.

Under issue No. 1 it was held by the trial Court that the site in dispute is a part of public street. Issues No. 2 and 3 regarding valuation and non-maintainability of the suit were also decided in favour of the Plaintiffs and it was held that the suit was properly valued for the purposes of court fee and the present sun was maintainable in the present form. Under issue No. 4 it was held that Municipal Committee was not competent to lease out the property in dispute to Defendant No. 1 because it hampered the right of access of the Plaintiff to the public street. Since Defendant No. 1 raised construction over the disputed site, mandatory injunction was issued ordering the Defendant to remove the entire construction made by him on the site in dispute.

Beli Ram Defendant No. 1 filed an appeal against the judgment and decree of the trial Court. Municipal Committee did not prefer any appeal against this judgment. The first appellate Court affirmed the finding of the trial Court on issues No. 1 to 4 and held that the site in dispute is a part of public street and that the municipal committee is not competent to lease the property in dispute to Defendant No. 1 but strangely enough after confirming the finding of the trial Court on these two issues reversed the judgment and decree of the trial Court on the ground that the Plaintiff had no locus standi of getting the injunction restraining the Defendant Appellants from making any construction or getting any construction removed, if already made. This was done by the appellate Court by reversing the finding on the issue No. 3 and held that the Plaintiffs were not entitled to maintain the suit as the Plaintiffs had failed to prove sufficient injury to themselves to enable them to get a relief of prohibitory injunction restraining the Defendants from making any construction over the site in dispute or from getting the construction removed. Broadly speaking, the first appellate Court gave three reasons for coming to this conclusion, firstly that the Plaintiffs were not even the owners of the plot ABCD which they claimed to be in their possession at the time of filing of the suit, secondly, the Plaintiffs can have access to their plot ABCD from the Northern side and Western side: and thirdly, the piaintiffs did not suffer any injury or damage on account of the construction raised by the Defendants at the disputed site and, therefore, the Plaintiffs were not entitled to the relief prayed for. In my view, the first appellate Court has completely erred in coming to the aforesaid conclusions for the following reasons:

(i) It was alleged by the Plaintiffs in the plaint that the plot ABCD as shown in the site plan in their possession was evacuee property and they have already applied to the Rehabilitation Department for its transfer to them. Plaintiffs were, therefore, entitled to file the present suit on the basil of their possession of plot ABCD. Moreover, ultimately this plot has been allotted to them under the orders of this Court in Amar Nath v. Financial Commissioner C.W.P. No. 5057 of 1978. In view of the decision of this Court in C.W.P. No. 5057 of 1978 (supra), the rights of the Appellants would relate back to the date of application when they moved the Rehabilitation authorities for the transfer of plot in their possession. The First Appellate Court was, therefore, wrong in holding that the Plaintiffs were not the owners of the plot ABCD at the time of filing of the suit by them.

(ii) The fact that the site in dispute is a public street has not been denied by either of the Defendants in the written statement filed by them and the same vests in the Municipal Committee. It is admitted case of the Defendants that the Municipal Committee leased out the site in dispute to Defendant No. 1 presumably that the Plaintiffs had access to their plot ABCD from Northern and Western sides. First Appellate Court held that sufficient injury has not been caused to the

I Plaintiff-Appellants as they have access to their plot ABCD from Northern and Western sides and, therefore, no right vests in them to get a prohibitory and mandatory decree. In my view, this finding is I absolutely incorrect. First appellate Court was not right in saying that the Plaintiff-Appellants did not have a vested right of having access through the disputed site EFGH. Admittedly, it was a public street and the Municipal Committee could not use the same in any other manner except as a public street. The right of the Plaintiff-Appellants was to the right of enjoyment of way and that was vested right of the Plaintiffs and if the same was interfered with then he was entitled to maintain a suit for permanent injunction as well as for mandatory injunction. The findings recorded to the contrary by the trial Court that a suit for permanent injunction and mandatory injunction under the circumstances was not maintainable, is set aside and hold that such a suit was maintainable as a vested right of a way of the Plaintiff-Appellants had been interfered with by the Municipal Committee by leasing out a part of the public street EFGH to the Defendant-Respondents. Under issues No. 1 and 4, the appellate Court held that the site in dispute is a part of public street and further that the Municipal Committee was not competent to lease out the property in dispute to Defendant No. 2. In view of the findings on issues No. 1 and 4 also, the First "appellate Court erred in holding that no suit for permanent injunction and mandatory injunction was maintainable. Once it is held that the Municipal Committee had no authority to lease out a part of the public street to Defendant-Respondent No. 2 then as a corollary thereof, the suit filed by the Plaintiff-Appellants for permanent injunction and mandatory injunction would be maintainable as passage of the Plaintiff-Appellants had bees taken away by that illegal action of the Municipal Committee.

Finding on any other issue has not been challenged before me by cither party.

As a result of my findings above, the appeal is accepted. The judgment and decree of the lower appellate Court is set aside and that of the trial court is affirmed and the suit of the Plaintiffs stand decreed in terms of the judgment and decree of the trial Court. No costs.