Banarsi Dass vs Parkash Chand

Rakesh Kumar Garg, J.—This is Defendant''s second appeal challenging the judgement and decree of the Lower Appellate Court, whereby suit of the Plaintiff-Respondent for permanent injunction restraining the Appellant from encroaching upon or raising any construction upon the Rasta in dispute, was decreed.

As per the averments made in the civil suit, Plaintiff-Respondent was owner in possession of plots No. 25 and 41 in khasra No. 760. The Defendant-Appellant had constructed his house in plot No. 14 of khasra No. 760 and was residing in the same. On the northern side of plot No. 14, a common street 20 feet wide was existing for the use of inhabitants and was being used as a common passage of the villagers. The Appellant, in order to encroach upon the aforesaid common street, illegally and during the pendency of the suit raised illegal construction in the street and therefore aforesaid construction was liable to be removed and Appellant was liable to be restrained from further encroaching upon the common street.

On the other hand, Appellant resisted the suit by filing written statement alleging therein that the Plaintiff-Respondent had no locus standi to file the present suit and the same was not maintainable. It was further alleged by the Appellant that before construction of his house which abuts the alleged street, he had actually got measured the plot in the presence of the Plaintiff and in the presence of respectable members of the village and was strictly adhering to that demarcation. In fact, the Plaintiff-Respondent had encroached, illegally, plots of the new inhabited area and since Appellant was not supporting him, the present suit was filed just to harass him. Appellant had not made any encroachment of the street and therefore, Plaintiff-Respondent was not entitled to any relief. After appreciating the evidence led by the parties and hearing learned Counsel for the parties, the trial court dismissed the suit.

Feeling aggrieved from the aforesaid judgement and decree of the trial Court, Plaintiff-Respondent filed an appeal before the Lower Appellate Court, which was accepted and resultantly, suit of the Plaintiff-Respondent was decreed.

Not satisfied from the aforesaid judgement and decree of the Lower Appellate Court, the Defendant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:

Whether in the facts and circumstances of the instant case, the reliance placed by the First Appellate Court on the report of the Local Commissioner/Demarcation, which was prepared without fixing three pucca points, while accepting the appeal can be sustained in law?

Whether in the facts and circumstances of the instant case, the Plaintiff/Respondent having withheld the best evidence the suit filed by him could be decreed?

Whether in the facts and circumstances of the instant case, the Plaintiff/Respondent had locus standi and any cause of action against the Appellant for claiming the relief of injunction?

Whether in the facts and circumstances of the instant case, the Plaintiff-Respondent, without pleading or proving the specific damage, could be held entitled to the relief sought?

I have heard learned Counsel for the parties and perused the impugned judgement and decree.

In support of his case, learned Counsel for the Appellant has vehemently argued that Plaintiff-Respondent had no locus standi to file the present suit as he had not claimed any special damages to him by the alleged obstruction of the Appellant and the present suit could have only been filed in the representative capacity after obtaining the permission of the court under the relevant provisions of the Code of Civil Procedure.

The argument of the learned Counsel for the Appellant is without any force. The pleadings are to be read as a whole and not in piecemeal. Admittedly, the Plaintiff-Respondent had pleaded in his plaint that he was residing in the colony and the Defendant/Appellant wanted to illegally encroach upon the Rasta which was being used by the villagers including him and the Plaintiff-Respondent will suffer irreparable loss, in case, Appellant succeeds. Keeping in view the aforesaid pleadings, which could not be disputed, the Plaintiff-Respondent had a right to have access to his house and if any obstruction was made to the rasta, he had the locus to file the present suit.

Moreover, the Lower Appellate Court on re-appreciation of evidence recorded its findings against the Appellant on the basis of Ex. DW2/A which was relied upon by the Appellant, himself. From the perusal of the report Ex. DW-2/A, it is clearly established that the Appellant encroached 9 feet area of the Rasta. Moreover, the aforesaid report clearly suggests that in fact the shortage in the area of the plot of the Appellant might have been caused due to the covering of excess area by the adjoining plots i.e. plot No. 15, 16, 17, 18, 19 in khasra No. 760. If, area of the plot of the Appellant has been encroached upon by the other plot owners he has no right to encroach upon the area of the common rasta.

In this view of the matter, I find no merit in this appeal.

No substantial question of law can be said to be have arisen in this appeal.

Dismissed.