Narayan Das S/o Shri Aasan Das vs Shafi Mohd. S/o Shri Nena

This second appeal has been filed by the appellant-

defendants against the judgment and decree dated 22.11.2005

passed by learned District Judge, Sirohi in Civil Appeal No.29/99

whereby the first appeal preferred by the appellant-defendants

against the judgment and decree dated 30.7.1999 in Civil Original

Suit No.65/93 was dismissed and the decree passed by the

learned Civil Judge (Junior Division), Sirohi has been upheld.

Brief facts of the case are that the respondent-plaintiffs

No.1 to 4 filed a suit for mandatory and perpetual prohibitory

injunction against the appellant-defendants. The mandatory

injunction was sought by the respondent-plaintiffs against the

appellant-defendants for removal of their cabin installed at the

disputed land claiming to be a public chowk by the respondent-

plaintiffs and perpetual prohibitory injunction was sought against

the defendant-Municipal Board, Sirohi not to sale and transfer the

said land to any other person and not to create any obstructions

on the public way. It was alleged that at the suit land the cabin

of the appellant-defendants has been installed by them on some

part of the public way. It is averred in the plaint that the

respondent-plaintiffs are residing in their houses since 1966 and

also carrying on their business. It is mentioned in the plaint that

all the houses of the respondent-plaintiffs are facing towards

northern side whereas the shop is facing towards market in the

Western side on the main road and the chowk in dispute meets

the main road of the market. It is alleged that the appellant-

defendants had installed their cabin on the land which forms part

of the chowk and public way and thus created obstruction in public

way.

After serving notice of the suit upon the appellant-

defendants, they filed written statement before the learned trial

court wherein they denied all the contentions raised in the plaint.

It was stated that the cabin was installed by the appellant-

defendants under a licence issued by the respondent-defendant-

Board and the defendants have not encroached upon any land

which is claimed to be chowk or a public way by the respondent-

plaintiffs. It is further averred that the appellant-defendants are

carrying on their business in the cabin for last 35 years and the

respondent-plaintiffs have started living much after the installation

of the cabin by the appellant-defendants. It was also stated that

the appellant-defendants are paying rent to the respondent-

defendant-Board regularly and the land on which cabin has been

installed is an open place and it does not forms part of any public

way or chowk. It is also averred by the appellant-defendants that

the open land claimed by the appellant-defendants to be a chowk

or a public way is away from the cabin and the land where the

cabin had been installed has never been a part of the way. It was

stated that the respondent-plaintiffs have not been able to explain

as to how after a lapse of about 35 years, all of a sudden the

cabin of the defendant is creating nuisance. It was further

averred that only few years back, a handpump has been installed

on the open land in question which also does not create any

obstruction and nobody objected to it. It was averred by the defendants that suit has been filed merely on account of the fact

that towards the back of the defendants'' cabin the plaintiffs were

opening the ventilator about which the defendants raised objection

and so as to take revenge, the suit has been filed without there

being any cause of action.

A written statement was also filed on behalf of the

respondent-defendant-Board wherein it was stated that the map

produced by the respondent-plaintiffs showing the position of the

house is correct, but the measurement shown in the map is not

correct. It was stated that the respondent-plaintiffs started living

in their house after the allotment of disputed land and installation

of cabin by the defendants. It was stated that the open land is

used as a way to the main road but the same is not part of the

public road and the land which is beneath the cabin has never

been used as way by the plaintiffs. It was specifically denied that

the disputed chowk is a public way. It was also averred in the

written statement that under the license the defendant has

installed the cabin 35 years back and has not created any

nuisance. It was categorically stated that the defendant Board is

not intending to sell the land in question to defendants No.1 to 3.

On the basis of pleading of the parties, the learned trial

court framed the following issues:-

"VERNACULAR MATTER OMITTED"

The learned trial court decided the issues No.1 to 6 in

favour of the plaintiffs and issue No.7 against the defendants No.1

to 3.

The learned trial court after hearing the parties vide

order dated 30.7.1999 decreed the suit in favour of the

respondent-plaintiffs for mandatory injunction so also the

perpetual injunctions.

The learned first appellate court vide its judgment and

decree dated 22.11.2005 dismissed the appeal preferred by the

appellant-defendants and upheld the judgment and decree passed

by the learned trial court.

Being aggrieved with the aforesaid judgments of both

the courts below, the present appellant-defendants have preferred

the present second appeal before this Court.

This Court while admitting the present second appeal

vide order dated 10.3.2006 framed the following substantial

questions of law :-

(i) Whether the property recorded as way in the government record and admitted to have been recorded as so but has been put to different use about 40 years ago and putting a small obstruction in the enjoyment of property can be a ground of grievance to those plaintiffs who have filed the suit for removal of the said obstruction after more than 20 years and having full knowledge of the obstruction since last 20 years?

(ii) Whether the courts below failed to appreciate that the width of public chowk as given in the documents placed on record by the plaintiffs themselves show more width than the width which will be available after removal of the appellants'' cabin and what is its effect?

(iii) Whether the first appellate court committed serious error in rejecting the application under Order 41 Rule 27 C.P.C.?

Heard learned counsel for the parties and perused the

material available on record.

Learned counsel for the appellant-defendants has

contended that both the courts below have committed a grave

error of law and facts in passing the impugned judgments and

decrees. The learned courts below have ignored the material

evidence on record. The learned trial court has also failed to

appreciate the correct position of law. The findings arrived at by

the learned courts below are ex-facie contrary to facts and law

and perverse.

It is further contended that it is an admitted fact on

record that the defendants were put in possession of the cabin as

licensee of the defendant Board 35 years back even prior to the

respondent-plaintiffs started living in their houses in question.

Suffice it to say that the defendants were in continuous possession

of the land in question as a licensee and not as a trespasser,

therefore, the suit for mandatory injunction against the

defendants could not even be maintained in the manner, the same

was filed by the plaintiffs in absence of challenge to the license of

the appellant-defendants and prayer for its cancellation. It is

contended that so as to maintain the relief of mandatory

injunction, the respondent-plaintiffs were required to seek the

relief for cancellation of the license. It is also submitted that since

the appellants are holding the land as licensee under the valid

license issued by the defendant Board which has never been

revoked, therefore, without the cancellation of license in

accordance with law, the mandatory injunction for removal of the

cabin could not have been granted by the learned trial court.

It is further contended that it was an admitted fact on

record that the defendants were in possession of the cabin as

licensee of the defendant Board and were carrying on business

there for last 35 years. It was contended that the cabin of the

respondent-defendants installed on the land in question is creating

obstruction and amounts interference in the right of the appellant-

plaintiffs to use the chowk as way to their houses. But according

to the respondent-plaintiffs, they are also residing in their houses

since 1966, however, the existence of the cabin did not create any

obstruction or obstacle to use the chowk as way for all these

years, then how all of a sudden, the said cabin has become an

obstruction in use as the chowk as a way. There was absolutely

no explanation whatsoever on record in this regard. As a matter

of fact, had there been any obstruction or obstacle to use of the

way then certain the suit in the nature filed by the respondent-

plaintiffs should have been filed at the earlier occasion to seek the

injunction against the appellant-defendants.

It is further contended that a bare perusal of the map

produced by the plaintiff and so also the defendants along with

this appeal manifestly shows that the no obstruction whatsoever is

being caused on account of the cabin installed by the appellant-

defendants under the license issued by the defendant Board. The

fact that the land beneath the cabin has never been used and

cannot be used as a way is also apparent on the face of record.

It is also further contended by learned counsel for the

appellant-defendants that the averments made in the plaint reveals that the suit preferred by the respondent-plaintiffs in their

individual capacity was as a matter of fact, the representative suit

and the same not preferred in conformity with the provisions of

Order 1 Rule 8 of the Civil Procedure Code, 1908. Before filing the

suit in the representative capacity, no permission was sought by

the respondent-plaintiffs from the learned trial court and the

procedure laid down for maintaining the representative suit was

simply not followed. Thus the suit was not properly instituted.

It is contended that in the written statement the

appellant-defendants so also the defendant-Board disputed the

correctness of the map produced by the plaintiffs and specifically

averred that the land beneath the cabin was never used as chowk

or as a public way. In these circumstances, an application under

Order 18 Rule 18 of the Civil Procedure Code was preferred by the

defendants for inspection of the site in dispute by the Court so

that the exact position of the cabin and the alleged obstructions

could have come on record before passing the judgment and

decree by the learned trial court. Learned counsel for the

appellant-defendants submits that no prejudice was going to be

caused on such prayer being granted to the plaintiffs. On the

contrary, the true and correct facts would have come on record so

as to enable the learned trial court to adjudicate the dispute

between the parties in effective and just manner. It is contended

that the learned trial court has seriously erred in rejecting the

application preferred by the defendants in a mechanical manner.

The learned appellate court has also erred in rejecting the

contentions raised on behalf of the appellant-defendants. The

learned trial court so also the learned appellate court have

seriously erred in holding that the position explained in the map

produced by the plaintiffs has been accepted by the appellant-

defendants in the written statement whereas the appellant-

defendants so also the defendant-Board has not accepted the map

produced by the plaintiff along with the plaint. It is further

contended that the learned courts below have seriously erred in

holding that the land beneath the cabin is part of the chowk or a

public way. It was simply not proved that on account of the cabin,

any obstructions or nuisance is created. The learned trial court

has seriously erred in holding that so as to make the respondent-

plaintiffs entitled to claim the relief of mandatory and prohibitory

injunction, it was not necessary to prove any individual or special

damage.

It is also contended by learned counsel for the

appellant-defendants that learned trial court has seriously erred in

rejecting the application preferred by the plaintiffs under Order 6

Rule 17 of C.P.C. seeking amendment in the written statement.

The amendment sought was based on the subsequent events and

having direct bearing on the matter in dispute, therefore, the

learned trial court ought to have allowed the application preferred

by the appellant-defendants. The learned first appellate court has

also erred in affirming the order rejecting the application passed

by the learned trial court. The learned first appellate court has

also erred in rejecting the application preferred by the plaintiffs

before it under Order 6 Rule 17 C.P.C.

It is further contended that the learned trial court has

seriously erred in rejecting the application preferred by the

appellant for producing additional evidence on record with regard

to the fact that the plaintiff Shafi Mohammad submitted an

application before the defendant Board for a new gate towards the

western side of his shop. The permission was granted by the

defendant Board with the condition that he can open gate 3 ft.

away from the cabin of the appellant-defendants. However, he

opened the gate violating the condition incorporated in the

sanction granted and consequently, the defendant-Board ordered

for the closure of the gate against which the plaintiff Shafi Mohd.

preferred a writ petition before the this Court which was also

dismissed. The receipt issued by the defendant-Board to the

appellant-defendants on the payment of the rent from 1960

onwards were also the document germane to the matter in

dispute and for the reasons mentioned in the application the same

rightly could not be produced by the defendants before the

learned trial court. It is contended that in the interest of justice,

the learned appellate court ought to have allowed the application

preferred by the appellant-defendants for producing the additional

evidence on record.

It is further contended that the learned trial court has

seriously erred in drawing inference against the defendants on the

ground that the defendant Board has not deliberately produced

the map of the Sirohi State and other record before the Court. If

the respondent-plaintiffs have not been able to prove the fact by

producing cogent evidence on record that the land beneath the

cabin is part of the public way and if the defendant Board has not produced any evidence which could have helped the Court in

adjudicating the dispute effectively, then for this reason the

appellant-defendants simply cannot be made to suffer for no fault

on their part.

Learned counsel for the appellant-defendants has relied

upon the following judgments:-

(i) AIR 1975 SC 2238 - The Premier Automobiles Ltd. Vs.

Kamlekar Shantaram wadke of bombay and Others.

(ii) AIR 1989 SC 1988 - Sodan Singh and etc. Vs. New Delhi

Municipal Committee and another etc.

(iii) (2009) 3 ALD 104 Rajasthan State Road Transport

Corporation and Anr. Vs. Bal Mukund Bairwa,

(iv) Rajasthan State Road Transport Corporation, Jaipur & Ors. Vs.

Roop Singh - S.B. Civil Revision Petition No.74/12 decided by

Jaipur Bench of this Court on 10.02.2014.

On the contrary, the learned counsel for the

respondent-plaintiff has opposed the contentions raised by learned

counsel for the appellant-defendants and has supported the

impugned judgments and has submitted that there is concurrent

finding of both the learned courts below, therefore, the same

cannot be interfered with by this Court in the second appeal. It is

also submitted that no error has been committed by learned first

appeal court as well as learned trial court while passing the

impugned judgments and decrees as the same have been passed

after appreciating and scrutinizing the material evidence available

on record. Therefore, it is prayed that the present second appeal may be dismissed.

Learned counsel for the respondent-plaintiffs has relied

upon the following judgments:-

(i) 1999(1)RCR (Rent)3 - Rafiq Mohammed Vs. Nisar

Mohammed ;

(ii) 2014 (3) CDR 1721 (Raj) - Usha Soni & Ors. Vs. LRs of Dev

Kishan & Ors.

(iii) 2005(5) RLW742 - Takhat Singh @ Norat Mal Vs. The

Municipal Council, ajmer through its Administrator

(iv) RLW 1992(2) 229 - Mst. Parwati Bai Vs. Bheekam Chand (37)

(v) RLW 1972(1) 51 - Pyarelal Satpal Vs. Santlal

(vi) RLR 1991(1) 84 - Nizamuddin Vs. The Boardd of Revenue &

Ors. (6) and ;

(vii) 2009(2) DNJ (Raj.) 1025 - Munna Lal & Ors. Vs. State of

Rajasthan.

I have heard learned counsel for the parties and

perused both the impugned judgments and material available on

record.

Upon perusal of record it is proved that cabin is

situated in public way/chowk but the case of the appellants is that

they are paying rent to the Municipal Board and Municipal Board

had given the said land to them on rent and Municipal Board has

also admitted this fact, but upon perusal of Exhibits 12 and 13 it is

clear that in the year 1967 the respondent Municipal Board also

feels that due to installation of said cabin now it is creating

nuisance and obstruction to the public, therefore, the Municipal Board has given notices Exhibits 12 and 13 to the appellants to

remove their Cabin.

The Municipal Board had terminated the tenancy of

appellant-defendants vide notice Ex.12 dated 22.11.1967 which

reads as under:-

"VERNACULAR MATTER OMITTED"

The Municipal Board had treated the appellant-

defendants trespassers vide notice Ex.13 dated 22.6.1968, which

reads as under:

"VERNACULAR MATTER OMITTED"

Upon perusal of evidence produced by the parties, it is

proved that due to installation of said cabin, obstruction and

nuisance is caused to the plaintiff-respondents and public also.

Now the question is that "whether the Municipal Board,

Sirohi was competent to give a part of public way or public chowk

on rent for installation of such cabin or not?"

This Court in the case of Takhat Singh @ Norat Mal Vs.

The Municipal Council, Ajmer through its Administrator reported as

2005(5) RLW 742 has held that:-

"(11) So far as questions of law involved in the present case, as formulated by this court on 19.12.1984 and reproduced above, are concerned, I find that although the above formulated questions are also involved in the present case but the main question, in my opinion, which is involved in the present case, is as under:-

"Whether the Municipal Council, Ajmer, was competent to give permission for raising construction or to regularize the construction already made, on the land, which is part of public way, or not?"

(12) My answer to the above question is that Municipal Council was not competent to give permission for raising construction or to regularize the construction already made, on the land which is part of public way. The land of public way vest in public or it is dedicated to public at large, therefore, Municipal Council had no jurisdiction to regularize the unauthorized construction raised by appellant by charging compensation of Rs.50/-. The order passed by Municipal Council regularizing the illegal construction of appellant itself was without authority of law, therefore, Municipal Council was justified in issuing another order asking the plaintiff to remove construction raised on public land."

This Court in the case of Pyarelal Satpal Vs. Santlal

reported as 1972 RLW page 51 has held as under:-

(a) - Municipalities - Bikaner Municipal Act, 1923, Sec.51, 113 and 114 - Letting road sites for construction of stalls - Sections do not permit municipalities to let such land.

All the property of the nature specified in Sec.51 vests in the Municipality and is under its control on the specific condition that it shall be held and applied by it for the purpose of the Act. It is not open to the Municipality to convert a part of a public highway into a bazar.

Under Sec.113(b) it is open to the board to discontinue or close permanently any public street, but that can only be done for the purposes of the Act. This provision also does not entitle the Municipality to let out a part of a public highway to a private person for setting up stalls for carrying on business.

Sec.114 also does not authorise letting out a part of a highway for getting up a stall for carrying on business. The purpose for which permission may be granted to occupy any part of a street temporarily are specified in it. They envisage permission to be granted to those constructing buildings abutting public streets or public lands so that people may be able to dig foundations and erect scaffolding on the public street.

When the Act did not give any power to the Municipality to let out portions of a public highway for putting up stalls for carrying on business this could not be done by framing any bye-laws. Sec.129 of the Act which provides for framing bye-laws does not contain any clause specifically empowering the Municipality to frame bye-laws about letting out parts of public highways on Tehbazari."

This Court in Noor Mohammad Vs. Nagar Nigam, Jaipur

& Ors. reported as AIR 1996 Rajasthan 68 has held that:-

"7. I am further of the opinion that some employees of the respondent-Board were in league with the petitioner in getting the sale deed registered which is a public place which forms part of public thoroughfare since otherwise there was no question of granting any permission by the Municipal Board earlier for allotment of the land to the petitioner which was subsequently cancelled. I am further of the opinion that the sale deed dated 26-3-92 is itself an illegal document which cannot be given any effect to and no permission should be granted to the

petitioner for raising any construction over the land in question. If any such construction is raised by the petitioner in near future he shall be doing the same at his own risk as to costs and consequences and the Municipal Board will be fully empowered to demolish the construction if it is raised by the petitioner and the said action of the Municipal Board shall not be open to question before any Court or authority."

This Court in case of Laduram Vs. Municipal board,

Ganganagar reported as RLW 1967 page 255 has held that:-

"(d) Civil P.C., Sec.91(2)- Infringement of right of easy access to public road being infringement of private right, person entitled to sue without consent of Advocate General.

Sub-Sec.(2) of Sec.91 of the Code of Civil Procedure does not confer any special right on a private individual to maintain a suit in respect of a public nuisance. That right exists independently of the section. The reason is that if a person has an individual or special interest in a public right and has sustained particular damage, there is no reason he should be driven to the necessity of approaching the Advocate General for the purpose of channelising his claim, as the right which he seeks to exercise is a private right and not a public right.

The plaintiffs'' shops or ''nohras'' about on the public ways and are being used, or are capable of use, as business premises. It is admitted that there are doors in those premises which open on the public ways. The site plan shows that, to say the least, the plaintiffs would have to take a longer route to reach the main road every time they desired to leave their premises and reach the centre of the road (which alone is available for traffic at present) or its opposite extremity. They are therefore justified in pleading that the obstructions deprived them of the use of the full width of the roads for the free and full enjoyment of their properties. For instance, the rows of stalls would prevent easy and convenient access to the plaintiffs and their customers, the passage of the vehicles on a narrow strip of 2 or 3 feet is out of the question and, as is obvious, the premises have become less prominent from the centre of the public roads because of the intervening stalls. So when the plaintiffs are shown to suffer direct and substantial particular or special damage beyond the suffered by the general public, there is no reason why they should not be entitled to maintain their suits without the consent of the Advocate General. They should in fact be deemed to have suffered special loss without specific proof thereof in the facts and circumstances of these cases."

In the present case, upon perusal of evidence produced

by the parties it is proved that due to installation of cabin,

nuisance and obstruction are caused to the plaintiffs and public

also. Both the courts below have concurrently found that said

cabin is situated on a part of public way / chowk and there is

obstruction and nuisance to the plaintiffs and public at large is

also facing difficulty due to installation of said cabin.

In my considered view the courts below deeply

appreciated evidence available on record and has rightly appreciated the correct proposition of law and rightly decided the

issues No.1 to 6 in favour of the plaintiff-respondents.

Upon perusal of Ex.12 dated 22.11.1967, it is proved

that Municipal Board had also terminated tenancy of appellant-

defendants from 1.4.1968 and upon perusal of Ex.13 dated

22.6.1968, the Municipal Board had also found that the appellant-

defendants are trespassers over the suit land. In these

circumstances, the contention of the learned counsel for the

appellant-defendants that the appellant-defendants are licencee

and plaintiff-respondents have no right to dispossess them is not

tenable.

It is settled proposition of law that the Municipal Board

has no right to give permission to anybody to install a cabin in a

piece of public way or chowk. In these circumstances, the

permission given by the Municipal board to install the cabin to the

appellant-defendants is void ab-initio and the appellant-

defendants have no right to make their continuous possession

over a piece of public way and they have no right to raise any

demand for regularisation of the possession over a piece of public

way or chowk because first of all the permission given by the

Municipal Board is void ab-initio and secondly, according to the

notice Ex.12, the Municipal Board had terminated the tenancy and

according to the notice Ex.13 the Municipal Board also treated the

appellant-defendants as trespassers.

In view of above discussions, the findings given by the

courts below are based on material available on record. Both the

courts below have neither misread the evidence available on

record nor overlooked any material available on record and have

given sound reasoning about their findings and also discussed all

the relevant laws and judgments.

Upon perusal of record, it is also clear that the learned

first appellate court has rightly rejected the applications filed by

the appellant-defendants under Order 6 Rule 17 C.P.C. and under

Order 41 Rule 27 C.P.C. Learned first appellate court has given

cogent and justified reasons in rejecting the aforesaid

applications, therefore, no case is made out for interference in the

said orders and the judgments. Therefore, all the substantial

questions of law framed by this Court while admitting this appeal

on 10.3.2006 are liable to be decided against the appellants and,

therefore, the present appeal is liable to be dismissed.

In view of above discussions, no case for interference is

made out by this Court in this second appeal, hence, the same

fails and is hereby dismissed.