Ram Kishan and Another vs Jai Narain and Others

R.L. Anand, J.—This is civil revision and has been directed against the order dated 5.5.1998, passed by the Addl. Distt. Judge, Rohtak. who affirmed the order of the Trial court dated 6.2.19%. vide which the application of the plaintiff under Order 39 Rules 1 and 2. CPC. was allowed and the defendants were restrained from raising any construction towards the western side of the house of the plaintiffs and they were also directed to remove the encroachment raised by them within a week from the date of passing of the order, failing which coercive methods will be used to clear the street in question.

The case set up by the plaintiff before the trial Court was that on the western side of the their house, there is a public street and the respondents, whose house abuts to that street, had been throwing the dirty/rain water. The defendants have encroached upon the street. The allegations of the plaintiff have been denied. Both the courts below came to the conclusion that prima facie, there was a street on the western side of the house of the plaintiffs and the defendant had made certain encroachment. The reasons given by the first appellate court in dismissing the appeal of the present petitioners are given in paras 9 to 16 of the impugned order dated 5.5.1998, which read as under: -

The report of local Commissioner strongly establishes prime facie that the defendants have made encroachment in the street lying towards west of the plaintiff''s house. Site plan submitted by the plaintiffs tallies with the site plan submitted by the local Commissioner except that the local Commissioner has also shown encroachment made by the defendants in the street. The encroachment is prima facie writ large as there is street of 25-30 ft. width towards both sides of the encroachment made by the defendants, whereas the width of the street immediately towards the west of the plaintiffs'' house has been decreased to half by the aforesaid encroachment. The alignment of the street has been, disturbed by the encroachment. The alignment of the street on north and south of the disputed encroachment makes it clear that the defendants have made encroachment in the street. Local Commissioner''s report also shows that doors and pamalas of plaintiffs house have been closed by the defendants by raising wall, immediately in front of thereof. The western wall of the encroaclunent made by the defendants is only three feet in height and it is kacha wall. There is no boundary wall towards the north of the encroachment and there is a 3 ft. high wall towards the south of the encroachment, but towards east of the encroachment i.e. immediately towards west of the plaintiffs'' house, the defendants have constructed wall of 10 ft. height to close the doors and pamalas of the plaintiff''s house. In the aforesaid situation, the encroachment prima facie made by the defendants in the street causing special damages to the plaintiffs cannot be allowed to subsist and learned trial Court has. therefore, ordered its removal by way of ad interim mandatory injunction.

It may be added that the matter of ad interim injunction is a discretionary matter and discretion exercised by the trial Court should not be lightly interfered with in appeal. In the instant case, the impugned order is not perverse or patently illegal and does not suffer from any such other patent invalidity and so the same does not warrant interference in appeal.

It is also significant to mention that the present plaintiff No. 1 and one Rama owner of land laying towards east of the plaintiffs'' house had earlier filed a suit in the year 1983 regarding the same property i.e. house of present plaintiffs and the western land of Rama. In that suit filed in January 1983, the said plaintiffs had annexed a site plan. In that site plan also, street has been shown towards west of the house of the plaintiffs. At that time, the dispute was regarding the property of plaintiffs of that suit and not regarding the street on the western side. The defendants of that suit stated that they had no concern with the said property of the plaintiffs. The present suit was filed in July, 199S i.e. 12-1/2 years ago. the said site plan was presented in that suit showing street towards west of the plaintiff''s house and at that time, there was no controversy regarding the said street. So prima facie this circumstances also shows that a street exists towards west of the plaintiffs house as otherwise they would have not mentioned the said street in their said site plan as well as in the said plaint. It is true that the present defendants were not party to that suit, but all the same, the depiction of street towards west of plaintiffs'' house more than 12 years before the filing of the present suit does prima facie show that there is a street to wards west of the plaintiffs'' house. Counsel for the defendant-appellants cited Madanlal and Others Vs. Durgadutt and Others, and contended that this site plan cannot be looked into. However, it would be seen at the time of final decision of the suit as to what is the effect of the said site plan, but at this stage, prima facie the said site plan submitted more than 12 years before the riling of the present suit showing the same street towards west of plaintiffs'' house when there was no dispute about that street does show that there is street towards west of the plaintiffs'' house. So. the plaintiff''s case is further strengthened.

Counsel for the appellants also Submitted Out no document of grain panchayat has been produced to show that there is street towards west of the plaintiffs'' house. However, even the defendants have not produced any such document and it is not shown that any such document is in existence. So. this argument does not held the defendants.

Counsel for the appellants next submitted that the report of the local Commissioner shows the construction raised by the defendants and their goods lying there and so prima facie defendants are in possession of the site under their construction. The argument does not held the appellants. If the defendants have hurriedly made the encroachments by raising kacha wall, they cannot take advantage of their own wrong. Prima facie, they have made these encroachments in street causing special damage to the plaintiffs as their doors and pamalas have been closed and egress and ingress to their house has been effected, notwithstanding that there is also a rasta towards south of the plaintiffs'' house. In view of the aforesaid special damage to the plaintiffs, they have right to seek removal of the encroachment.

Counsel for the appellants also urged that there are doors of plaintiffs'' house towards south also. However, there is no such door of plaintiffs1 house as per site plan furnished by the plaintiffs or as per site plan prepared by the local Commissioner.

Counsel for the appellants also contended that jurisdiction of the civil court is barred as question of vesting or non-vesting of the disputed site as street in gram panchayat is involved. Prima facie, the argument cannot be sustained. The argument is beyond pleading. Secondly. Gram panchayat is not party to the suit. Thirdly, the plaintiffs are not challenging the vesting of the street in the gram panchayat. Counsel for the appellants cited J a mail Singh and another vs. Gram Sabha of village Sarbha and others. 1987 PLJ 175. However, in that case Gram Panchayat was party and the plaintiffs denied the title of Gram Panchayat to construct drain through Panchayat property. In this situation, jurisdiction on the civil court was held to be barred. In our case, however, that is not the situation and so this ruling is completely distinguishable. Plaintiffs themselves are seeking to safeguard the panchayat property in the present suit.

Reliance on behalf of the appellants has also been placed on Hukam Singh and others vs. Daulat Ram and others, 1987 PLJ 636. In that case, however, both sides conceded that the suit land vested in grain panchayat being shamlatdeh. Moreover, in that case, the plaintiffs had not alleged any special damage so as to maintain the suit. In the instant case, however, the plaintiffs would suffer special damage as their doors and pamalas have been closed. So. this ruling is also not attracted to the facts of the case in hand.

I have heard the counsel for the parties and with their assistance have gone through the record of this case.

Counsel for the petitioners submitted that the courts below have relied upon the judgment and decree of the previous suit in which the plaintiff-respondents and a stranger were a party. That suit was decreed on 21.3.1983 on the statement of the defendant.

The submission of the counsel for the petitioner cannot be accepted. In the earlier suit filed by the plaintiff-respondents, on the western side of their house, a street was shown. This, prima facie, establishes that there was a street in existence even in the year 1983. This is only circumstances in favour of the plaintiffs.

Counsel for the petitioner, then, contended that the petitioner have not violated the stay order dated 7.7.1995 and. in these circumstances, the courts below could not direct the defendants to demolish the encroachment made on the street.

I do not again, subscribe to the argument of the counsel for the petitioners. Prima facie, the plaintiffs have been able to prove that there was a street. In this case, a Local Commissioner was also appointed. The report of the Local Commissioner, prima facie, establishes that the defendants have made encroachment in the street lying towards west of the house of the plaintiffs. It was observed by the first appellate court that the encroachment is, prima facie, writ large as there is a street of 25-30 feet width towards both sides of the encroachment made by the defendants. In this view of the matter. again, there is a strong circumstance in favour of the plaintiffs.

I do not see any illegality! impropriety or perversity in the impugned order dated 5.5.1998.,The revision is without merit and the same is hereby dismissed. However, the trial Court is directed to expedite the trial.

Nothing stated above shall amount to expression of my opinion on the merits of the case.

Records be sent back forthwith.