Vijay Kumar & Anr vs Roop Lal & Ors

Jyotsna Rewal Dua, J

The application of the petitioners under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure was dismissed by learned trial court on 3.3.2021. The order was affirmed in appeal by the learned first Appellate Court on 26.3.2021. Aggrieved, the petitioners have preferred the instant petition under Article 227 of the Constitution of India.

2(i) Suit was filed under Section 91 of Code of Civil Procedure read with Sections 37, 38 and 39 of Specific Relief Act by the petitioners with the grievance that respondents/defendants were forcibly trying to raise construction over the suit land and were blocking a public path on the sut land. Prayer was made for restraining the respondents/defendants from causing public nuisance by raising construction, obstructing the public path, encroaching the suit land and changing the nature of the suit land in any manner. Alongwith the plaint, an application under Order 39 Rules 1 and 2 CPC was also filed for restraining the defendants from raising construction, obstructing the alleged public path and changing the nature of the suit land till the final disposal of the suit.

2(ii) In the written statement, the respondents/defendants raised a preliminary objection that State of H.P., the owner of the suit land, had not been arrayed as party. Further, it was submitted that Gram Panchayat, Slapper through Gram Sudhar Committee, Slapper had constructed a community hall over the suit land about 15 years ago. On the first floor of the said building, further construction had also been completed and presently the construction work of stairs to the first floor was under way. The respondents/defendants denied raising any construction and blocking the public path. Their case was that neither any public path existed on the suit land nor it was obstructed by the respondents/defendants.

2(iii) Both the learned courts below dismissed the application preferred by the petitioner under Order 39 Rules 1 and 2 CPC. By way of instant petition, the petitioners are taking their third chance.

Heard learned counsel for the petitioners and gone through the documents appended with the petition.

4(i) In support of petitioners' contention that suit land was being used as public path by the general public, reliance was placed upon a jamabandi wherein the suit land has been recorded as 'Rafay-aam' i.e. land for public use. This entry relied upon by the petitioners does not advance the case of the petitioners that suit land is recorded as public path.

4(ii) Learned counsel for the petitioners by placing reliance upon report of Village Revenue Officer, Kangoo (Annexure P-4) submitted that construction activity was being carried out on the suit land. The fact that construction activity was going on would not mean that the same was unauthorised or illegal construction. A perusal of the report reflects that Village Revenue Officer had reported the use of land for parking of vehicles by the people of the locality. The user by public does not vest any inherent right per se in favor of the petitioners to restrain the defendants..

4(iii) Admittedly, the suit land is owned by the Government of Himachal Pradesh and not by the petitioners. Government has not come forward for taking any action in respect of alleged illegal construction over the land in question.

The State of Himachal Pradesh has not even been impleaded as party respondent in the civil suit.

4(iv) Petitioners have not pleaded any independent right over the suit land. Even the Gram Sudhar Committee, Slapper, which is stated to be a registered society and carrying out the construction over the land (in terms of report at Annexure P-4) has not been impleaded in the suit.

4(v) The respondents/defendants had pleaded that community hall and first floor of the same were already existing on the spot. Further, construction over the same was also carried out. The petitioners approached the Court only when a staircase was being built as an approach to the first floor. The stand of the respondents/defendants puts the petitioners in a tough position as there was no pleading in the plaint about existence of such structure on the spot. The petitioners' assertion that the suit land was vacant land/path for general public and was being obstructed by the defendants by blocking the path existing over it was not prima-facie correct.

Apparently, the petitioners did not come to the court at the appropriate time. Material facts were also not disclosed. The parameters laid down by the Hon'ble Apex Court for granting temporary injunction viz existence of prima facie case, balance of convenience and chances of irreparable injury to the petitioners, are not satisfied in the instant case. Therefore, learned court below committed no error in dismissing the application of the petitioners. I do not find any merit in the petition and the same is dismissed, so also the pending application(s), if any.

It is clarified that above observations are only for adjudicating the application in question and will have not bearing on the merits of the case at all.