Bani Singh vs Rattan Singh

B.S. Yadav, J.

The facts leading to this appeal are that the plaintiff along with his brothers is owner of plot No. 122/4. Defendants Nos. 1 to 5 are owners of plot No. 122/3 which is situated to the East of the plaintiff''s plot. That plot was given to them during consolidation proceedings for extension of abadi. To the North of both these plots, a passage 11 feet wide was left in those proceedings. That passage was being used as a thoroughfare by all the inhabitants of the village. About 21/4 years prior to the filing of the suit, the defendants made construction on their plot and while doing so they encroached upon the passage situated in the North of their plot. To the East of the plot of the defendants also, there was a thoroughfare. The defendants made encroachments upon a part of that Eastern thoroughfare also. The encroachments on the thoroughfares have been shown in red colour in the plan filed with the plaint. Thereupon, the plaintiff filed the instant suit complaining that these encroachments were causing obstruction in the use of those thoroughfares by all the inhabitants of the village and carts could not pass through those thoroughfares. He, therefore, prayed for a decree for mandatory injunction requiring the defendants to remove the obstructions and not to make further encroachment. Defendants Nos. 1 to 3 and 6 contested the suit and denied the plaintiff''s allegation that they had encroached upon any part of the thoroughfares. It was also pleaded that the Civil Court had no jurisdiction to try the suit. Some other pleas were also taken, as would be clear from the following issues framed by the learned trial Court :

(1) Whether defendants have encroached on any portion of the street; if so, when and its effect ? OPP.

(2) Whether jurisdiction of the Civil Court is barred ? OPD.

(3) Whether suit is properly valued for purposes of courtfee and jurisdiction; if not what is proper valuation ? OPP.

(4) Whether suit is barred by time ?

(5) Whether Gram Panchayat of village Shafiabad is a necessary party to the present suit ?

(6) Relief.

Under issue No. 1, it was held that the defendants had encroached upon the pathway situated to the North of the defendant''s plot to the extent mentioned in the report of the Local Commissioner, whose report was accepted by the Court as correct. It may be mentioned here that the plaintiff had given up his prayer regarding the thoroughfare situated to the East of the defendant''s plot. Under issue No. 2, it was held that the jurisdiction of the Civil Court was not barred. Issue Nos. 3, 4 and 5 were found against the defendants. While discussing the relief clause, the Court held that the plaintiff was seeking relief in respect of a public nuisance and he had failed to show that any special damage was caused to him beyond what was being suffered by others. Therefore, he was not held entitled to the relief prayed for. For coming to this conclusion, reliance was placed upon Arya Pratinidhi Sabha Punjab v. Lal Chand and another, 1964 PLR 670. Consequently, the plaintiff''s suit was dismissed. Feeling aggrieved, the plaintiff filed the appeal. The defendants also filed crossobjections, challenging the finding of the trial Court under issue No. 1. The appeal and the crossobjections were heard by the learned Additional District Judge, Jind, Camp at Sonepat. The crossobjections were not pressed before him and those were dismissed. He also held that the defendants encroached upon the Northern thoroughfare to the extent of the site shown in yellow colour in plan Exhibit P6 prepared by the Local Commissioner. However, relying upon Arya Pratinidhi Sabha Punjab''s case (supra) he dismissed the appeal, as the plaintiff had failed to prove any special damage caused to him by the encroachment. The plaintiff has now filed the second appeal in this Court.

The learned counsel for the respondents raised a preliminary objection to the effect that the Civil Court had no jurisdiction to decide the suit. He argued that admittedly in view of Section 2(g)(4) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the Act) as applicable to Haryana, land used for reserved for the benefit of village community including streets, lanes etc. are included within the definition of `shamilat deh'' and in view of Section 13 of the Act, the Civil Court has no jurisdiction. This argument has no force. Gram Panchayat concerned is not a party to the present suit. Hence the suit is not barred under the above provision. In this respect, reference can be made to Bhagu v. Ram Sarup, AIR 1985 Pb. & Har. 257 : 1985 R.R.R. 353, the head note of which reads as follows :

``From a combined reading of Sections 13 and 13A it is discernible that the jurisdiction of the Civil Court is excluded from entertaining or adjudicating upon the questions stated in Section 13 when the lis in between a private person and the Panchayat. In other words, it is only when the contest is between the Panchayat and a private person for the determination or adjudication of the question specified in clauses (a) and (b) of Section 13 that the jurisdiction of Civil Court is barred. It is obvious that the right, title or claim of a private person to a particular land or immoveable property visavis the Gram Panchayat cannot factually and effectually be settled in the absence of the Panchayat being impleaded as a party to the litigation. Section 13 would not be operative when the lis or the dispute is between two private individuals.''''

He next argued that the dispute of the present nature can be decided by the Assistant Collector of the Ist Grade. Reliance was placed upon Section 7 of the Act. I am of the opinion that the matter of the present nature does not fall under Section 7 of the Act. The said Section reads as follows :

``7. Power to put Panchayats in possession of certain lands. (1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer of any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as my be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act and put the Panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue Court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887.

(2) The Assistant Collector of the first grade may, by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, at a rate not less than six hundred rupees and not more than two thousand and five hundred rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.

(3) If any person refuses or fails to comply with the order of eviction passed under subsection (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the Panchayat in possession.

(4) Any person aggrieved by an order of the Assistant Collector of the first grade may, within a period of thirty days from the date of the order, prefer an appeal to the Collector in such form and manner, as may be prescribed.''''

I am of the opinion that Section 7 has not been enacted for deciding the matters of the present nature. The marginal note of the Section reads as follows :

``Power to put Panchayat in possession of certain lands.''''

Of course, the marginal note of a section cannot be taken as expression conveying all the provisions contained in the Section, but it at least gives some guidance that for what purpose the said section has been enacted. As the marginal note shows Section 7 has been enacted only to put Panchayat in possession of certain lands. Subsection (2) of that Section further makes the meaning of the section clear, which empowers the Assistant Collector to impose penalty at a certain rate per hectare pr annum having regard to the benefit which could be derived from the land or the immoveable property. The Panchayat is not expected to derive any benefit from a thoroughfare. Though a thoroughfare vests in the Gram Panchayat having jurisdiction, but technically speaking it cannot be said to be in possession of it. Therefore, for removal of obstruction from a thoroughfare a person can come to the Civil Court and Section 7 of the Act would not bar the jurisdiction of the Civil Court. The preliminary objection raised on behalf of the respondents is accordingly overruled.

Both the learned Courts below have come to a concurrent finding of fact that the defendants have made encroachments upon a thoroughfare situated to the North of their plot to the extent found by the Local Commissioner. As noticed earlier, the plaintiff''s suit has been dismissed by the Courts below solely on the ground that he has not been able to prove the special damage having been caused to him by the said encroachments. The Courts below failed to consider that the dispute relates to a village pathway and the plaintiff was not bound to prove any special damage, as the suit does not relate to a public path. In Movva Butchamma v. Movva Venkateswararao, AIR 1669 A.P. 136, the plaintiff had filed a suit for permanent injunction restraining the defendants from interfering in any manner with her right to use the street meant for the passage of men, cattle and carts. The trial Court decreed the suit, but the lower appellate Court rejected the plaintiff''s prayer for mandatory injunction for removal of the obstruction on the ground that notwithstanding the obstructions the street was wide enough to afford the passage to men, cattle and carts and the plaintiff had not established any special damage, entitling her to a relief by way of mandatory injunction. The plaintiff filed appeal in the High Court of Andhra Pradesh, but it was dismissed. The plaintiff filed Letters Patent Appeal. It was remarked :

``7. We have earlier pointed out that while dealing with question of maintainability of the suit, Kumarayya, J. had held proof of special damage was unnecessary, whether the suit was for removal of an obstruction which constituted a public nuisance or for removal of obstruction to a village pathway. Having arrived at that conclusion we are unable to see why in the case of obstruction to a village pathway a mandatory injunction should be refused on the ground of absence of proof of substantial damage. In K. Subbamma v. L. Narayanamurthi, 1949(1) Mad.L.J. 56. Satyanarayana Rao, J. held that a suit for removal of obstruction to a pathway was maintainable without proof of special damage whether the pathway was a highway or a village pathway which could not be `raised to a dignity of a public highway''. A decree for a mandatory injunction granted by the lower Court was confirmed by the High Court.''''

The plaintiff''s appeal was accordingly allowed.

Reference can also be made to Gorelal and another v. Mulua, AIR 1980 Madhya Pradesh 73, wherein it was remarked :

``5. The first submission made before me was that the case is covered under Section 91 C.P.C. and as no permission was taken by the plaintiff from the AdvocateGeneral, the suit is incompetent. I do not accept this proposition of the learned counsel. If the case is with respect to public nuisance or wrongful act affecting or likely to affect the public then in a suit for declaration and injunction permission from the AdvocateGeneral is necessary. It is not a case of public nuisance or other wrongful acts affecting the public. In Sri Ram Singh v. Patti, AIR 1968 Allahabad 18, it was held as under :

``A village pathway is not a public highway and no special damage need be proved in a suit for removal of an obstruction to the former. Wrongful obstruction by unauthorised construction amounts to infringements of the rights which the residents of the village enjoyed, and these infringements cause them special damage.

Even if the plaintiff loosely described the passage as public pathway and even if the passage running through the village was considered as a part of the longer route extending beyond its precincts it is so far as the village itself is concerned, only a village path, in which residents of the village and neighbourhood are directly interested. The residents of the village can claim special amenities not open to those others in respect of that part of the passage which ran from one end of the village to the other.''''

Similarly, I may refer to Ramabrahma Sastri v. Lakshminarasimham, AIR 1957 A.P. 44. It also deals with a case of public nuisance. It is held in that case as under :

``A road is either public or private. A road or a street whose user is limited to the inhabitants of a particular village or people who visit them on business or otherwise is not a public road. A public highway is dedicated not to a limited section of the public but for all subjects, that is to say, the public at large. A road running through a village is in one sense a village road but it may nevertheless be a highway if it has been dedicated to the public at large as in the case of trunk roads.''''

Therefore, relying on the observations in the above judgments and the section itself, I think that Section 91 C.P.C. is not attracted in the present case. It is not a public road. Neither there is evidence to show that this was dedicated to the public. Therefore, the objection of the learned counsel cannot be accepted.''''

Hence the village pathway cannot be said to be public highway and it was not necessary for the plaintiff to prove any special damage caused to him.

For the foregoing reasons, I accept the present appeal, and set aside the judgments and decrees of the learned Courts below and decree the suit of the plaintiff against the defendants. They are directed to remove the encroachment made by them in the passage situated to the North of their plot. The extent of encroachment has been shown in plan Exhibit P6 prepared by the Local Commissioner. The defendants are also injuncted from making any encroachment in that northern passage in future. In the circumstances of the case parties are left to bear their own costs throughout.