Vishwa Mohini Devi and others vs Varendra Kumar Gupta and others

H. N. Tilhari, J.—This is plaintiffs,'' second appeal, arising out of a judgment and decree dated 11111978 passed by Sri K. N. Misra, II Addl. District & Sessions Judge, Kheri in civil appeal no. 144 of 1978, confirming and affirming the judgment and decree dated 1981978 passed by Sri N. B. Singh, Munsif Kheri in suit no. 195 of 1973 dismissing the plaintiffrespondents'' claims for permanent injunction.

The brief facts of the case are that the plaintiffrespondents filed the suit for decree of permanent injunction restraining the defendants from occupying the land towards the southeast on the road adjacent to the plaintiffs'' shop situated in Khapraila Bazar, Lakhimpur Kheri of which the plaintiffs claimed themselves to be the tenants of Rameshwar Dayal Gupta who is the owner Landlord thereof.

According to the plaint allegations, on the east of the shop of the plaintiffappellants there is a road and similarly to the South of the plain�tiff:.'' shop also there exists a road or Rasta. That on the eastern side as well as on the northern side of the plaintiffs'' shop, there are shops belong�ing to different shop keepers According to the plaintiffs'' case, the defen�dantrespondents placed their ''Takhat'' on the public passage towards the south of the shop of the plaintiffs. The plaintiffs appellants claimed themselves to be entitled to the right of user of public Rasta on both the side, that is, east and south of their shop. According to the plaintiffs, by plac�ing the ''Takhat the defendantrespondents started causing interference with the plaintiffs'' right of way and to cause inconvenience to the plaintiff in the suit. The plaintiffs'' have also impleaded the Municipal Board as one of the defendants in the suit and it was alleged that no notice has been given to the Municipal Board Lakhimpur Kheri, as the suit was for perma�nent injunction and if two months notice would have been given, the suit would have become infructuous. The plaintiffs prayed that decree of perma�nent injunction be granted in their favour against the defendantrespondents restraining them from illegally interfering or from taking and continuing illegal possession of the land in dispute which has affected the plaintiffs'' right of way over the land in dispute and its user.

The defendants contested the suit and filed the written statement. In their written statements the defendants took plea that the plaintiff''s father and defendants had taken the shop in suit on rent & used to carry on business The business was of joint family & their family was joint as Puttu Lal was the ''Karta'' of the family.That about 30 years ago there was a division of the family. Puttu Lal started sweetmeat''s business in a part of the shop and Mohan Lal, the father of the defendants started chat business in other part. That in connection with the business, Mohan Lal had put a plank in a corner of that shop. According to the defendant''s case, the plaintiffs appellant had no right to get the plank removed which was placed on the land belonging to Nagar Palika and the defendant is and has been paying Tahbazari dues to Nagar Palika for the last thirty years. It was further averred in written statement that as no notice under Section 326 of the U. P. Municipalities Act had been served on the Municipal Board, the suit was barred on that account and was not maintainable and as such the suit is liable to be dismissed. The defendants had also taken the plea that the suit was liable to be stayed under Section 10 of the Code of Civil Proce�dure in view of the earlier litigation pending between the parties that is plaintiffs and defendants 1 to 5 and others, in the court of Munsif Kheri.

That defendant no. 6 the Municipal Board filed a separate written statement and pleaded in defence that plaintiffappellants and defendant no. 1 to 5 were cotenants of shop in dispute and defendant no, 1 Mohan Lal carries Chat business in one corner of shop since long. That Tehbazari is being realised from Mohan Lal defendant no. 1. That plaintiffs''suit is bad and plaintiffs are not entitled to get the relief claimed. Suit was bad for want of notice under Section 326 of U. P. Municipalities Act.

On the basis of pleading of the parties, the trial court framed the following issues :

Whether the suit is liable to be stayed under Section 10 of the Cede of Civil Procedure as has been stated in para17 of the written statement?

Whether the plaintiffs have got the right of way over the land in dispute, if so its effect ?

Whether the defendants 1 to 5 including heirs of defendant no. 1 are licensees in the land in dispute on behalf of Nagar Palika, defendant no. 6, if so its effect ?

Whether the suit is barred by Section 326 of the Municipali�ties Act.

Whether the plaintiffs are entitled to get the Takhat of the defendants 1 to 5 removed from the land in dispute ?

To what reliefs if any are the plaintiffs entitled ?

The learned trial court by his judgment and decree dated 1981978 dismissed the plaintiffs'' suit after having held that the plaintiffs have not claimed the right of easement and that the plank is lying on one corner of the shop and on the Kharanja and nali of the Municipality and it neither did nor does cause any obstruction to his right of egress or ingress to the shop and that the defendants proved themselves to be the licensees of the Municipal Board. The Municipal Board has got the right to deal with them i. e. defendants i. e. licensees and as such plaintiffs have failed to prove their case and, as such, as I have mentioned above, the trial court dismissed the plaintiff appellant''s suit.

Feeling aggrieved from the judgment and decree of the trial court the plaintiffs preferred first civil appeal under Section 96 of the Code of Civil Procedure being civil appeal no. 144 of 1978. The said appeal has been dismissed by the II Addl. District and Sessions Judge, Kheri by judgment and decree dated 11111978 and the trial court''s decree has been confirmed.

The learned lower appellate court, while dismissing the first appeal, held as under:

(a) That the defendants have proved that they have become the licensees of the Municipal Board and that they are paying Tahbazari dues and they have filed several receipts, issued by the Municipal Board in favour of the defendants. In the present case the Takhat is a simply temporary placing by the defendants.

(b) That the defendants have taken licence from Nagar Mahapalika and are paying Tahbazari to Nagar Mahapalika. There is no permanent constructions nor any permanent construction have been proposed by the Municipal Board.

(c) That the right of way of the plaintiff is no way affected because all the openings of the plaintiffappellants shop are free for the egress and ingress of the customers and there is no proof or any evidence worth reliance which may show or prove any special damage to plaintiffs. The right of plaintiffs, if any is in no way affected by the placing of the Takhat by the defendants and that two passages lying towards the east and south of plaintiffs'' shops have got no obstruction due to the Takhat of the defendants.

(d) That the plaintiffs have suppressed the correct facts and the allegations in the case do not show or indicate that the placing of the Takhat by the defendants was a recent act. The evidence on the record goes to show that the defendants have been placing the Takhat in question on the land in dispute for quite a long time and defendant did not any way trespass over the Kharanja road, belonging to the Municipal Board instead are the licensees of the Board.

(e) That no notice under section 326 of the U. P. Municipalities act has been given to the Board. In view of the above, the learned trial court acted rightly in dismissing the plaintiffs'' suit and judgment and order of the trial court decree did not suffer from any legal error.

Feeling aggrieved from the judgment and decree of the lower appellate court the plaintiffs have come up to this Court and preferred second appeal under Section 100 of the Code of Civil Procedure.

I have heard Sri Z. Jilani, learned counsel for the appellant as well as Sri H. S. Sahai, learned counsel for the respondents at length.

Sri Z. Jilani, learned counsel for the appellant contended that the decision of the court below to the effect that the suit was not main�tainable for want of notice under section 326 of the Municipalities Act was incorrect and that the learned court below committed substantial error of Law, holding the suit to be not maintainable on account of want of notice under section 326 of the U, P. Municipalities Act. He further submitted that the placement of Takhat and the plank on the land in question was public nuisance and there was no further question of plaintiff proving the special damages and he further submitted that section 91 of the Code of Civil Procedure was not applicable. Sri Zilani submitted that even if S. 326 of the Municipalities Act did apply sub. S.(4) thereof came to the plaintiffs'' rescue. He further submitted that placing of Takhat in front of shop on the public street is itself sufficient to show substantial damage even if nothing else was proved.

On behalf of the respondents Sri H. S. Sahai submitted that the present appeal is really concluded by the findings of fact to the effect that the Takhat or plank lying on the Kharanja or nali of the Municipal Beard on the corner of the shop is not shown or proved by the evidence on record to be or to have been blocking the passage either of the public on the either sides nor the passage of the plaintiffs'' either sides towards east or south are blocked by the disputed Takhat or by the plank lying on the land. That there is no evidence except the testimony of P. W.1 about any inconvenience or obstructions being caused either to the public or to the customers or even to the plaintiff as the plaintiffs'' right for egress or ingress to the shop is not in any way adversely affected due to the Takhat or plank lying or placed by defendants over the land in dispute. Sri Sahai submitted that when no obstructions or injuries or annoyance is caused to the public, there is no question of public nuisance being caused and this finding that no obstructions, nuisance or injuries is being caused to a member of the public by placing of the Takhat at the land in dispute is pure finding of fact. He further submitted that the plaintiffs'' have failed to prove any special right or injuries to his right by the placing of the plank or Takhat by the defendants. This is also a pure finding of fact, arrived at by courts below. Sri Sahai further submitted that the land in dispute, admittedly, is the land belonging to Nagar Mahapalika and is the public land and the Takhat or plank has been placed with the permission and licence from Nagar Mahapalika. The plank has been placed on a corner of the shop and on the Kharanja and Nali of Municipal Board. It shows that it is located in such manner that and even if it would have been an encroachment it could not be public nuisance as evidence does not show that it has the effect of causing any injuries, danger or annoyance to the public and if he did at all in that cate the plaintiff had no right to file the suit except in accordance with re�quirements of section 91 C.P.C. and as no special and definite injuries to the plaintiff have been caused nor plaintiffs have shown or proved any. Sri Sahai submitted that the plaintiffs have not proved nor claimed any right of way by producing a customer and when he has not proved that any right of way has been affected, because of the openings of the shop, free passage for egress and ingress of the customers and two passages lying towards east and south are not obstructed due to plank or Takhat which are of temporary nature. The plaintiffs'' suit has rightly been dismissed by court below. Sri Sahai further submitted that the defendant has been found by the court below to have been making the use of the land in dispute by placing the Takhat or plank on the corner with the permission and licence from the Nagar Mahapalika, Kheri as has been found by the court below. Merely by placing the Takhat or plank, the suit could not be filed without giving due notice to the Nagar Mahapalika under Section 326 of the U. P Municipalities Act. Sri H. S. Sahai. learned counsel for the respondent submitted that plaintiff could not claim pro�tection under sub section 4 of the section 326 of the U. P. Municipalities Act. They were bound to give the notice in view of the language of the section and as such, suit was rightly held not to be maintainable without giving proper notice under section 326 of the Municipalities Act

I have gone through the record and the pleadings of the parties and other material on record. I have applied my mind to the submissions of the learned counsel for the parties as well as to record of the case.

The first submission of the learned counsel for the appellant is that to the east as well as to the south of the plaintiffs'' shop there is public path that is road. The land lying towards the road or rasta belongs to Nagar Mahapalika and that land particularly the Kharanja and the nali belongs to Municipal Board and it is a part of the Nagar Mahapalika land or the Rasta. The plaintiffs have filed the suit alleging the land in dispute to be the part of Rasta and further alleging that it affects his right of way. The plaintiffs'' effort is to make out a case not of a public nuisance but a case showing that by the act of the defendants right of way of the plaintiffs have been obstructed. Therefore, in this context the plaintiff has not filed the suit ventilating the public grievance or grievance caused by any such things as public nuisance. There can be no doubt that the case may be said not to be effected by sub section (1) of Section 91 of the Code of Civil Procedure, as contended by the learned counsel for the appellant. The expression "public nuisance'''' has not been defined in the Code of Civil Procedure but if we read sub section (1) of section 91 it covers those cases where the plaintiffs allege that the defendants have done some wrongful Act which is affecting or which is likely to affect the public at large Accordingly suit for and under section 91 (1) of the Code of Civil Procedure for injunction may be filed in respect of act, which are tantamount to a public nuisance or the acts which are affecting or have likelihood of affecting the public or the people. In the Act it is provided that in such cases a suit may be instituted for declaration and injunction by Advocate General or it may be instituted by two or more persons with the leave of the Court irrespective of the fact that no special damage has been caused to such persons who are instit�uting the suit by reason of public nuisance or of wrongful Act of the nature as mentioned above. Public nuisance has been defined in the General Clauses Act vide section 3(48) of General Clauses Act. It reads as under :

"Section 3: In this Act and all Central Acts and Regulation made after the commencement of this Act unless there is nothing repugnant in the subject or context(48) Public nuisance shall mean public nuisance as defined in question of Indian Penal Code".

In view of this definition, the definition of public nuisance given in Indian Penal Code, Section 268 may be referred.

Section 268 of Indian Penal Code defines the public nuisance and reads as under

S. 268 "The person is guilty of a public nuisance does who any act or is guilty of a illegal omission which causes the common injury, danger or nuisance to the public or people in general who dwell or occupy the property in vicinity or which most necessarily causes injury, obstruction or danger or nuisance to the persons who may have occasion to use any public right."

A reading of this definition per se shows that act or illegal omi�ssion in order to be a public nuisance requires to fuffil the following: conditions. That is in order to prove an act of a person or illegal omission of a person amounts, in a given case, to be a public nuisance it must ber established :

(a) That the act causes a common injury, danger or annoyance to the public or to the public in general residing in the vicinity, or

(b) That the act or illegal omission has got the necessary tecdeney to cause or it necessarily causes injury or obstructions or danger or annoyance to the person who may have an occasion to use any public right.

This has been the view of this Hon''ble Court as has been expre�ssed in Datta Mal Chirauji Lal v. Lalta Pd. A.I.R. 1960, Allahabad page 632 (para3), Raghuber v. Madari and others reported in A.I.R. 1936 oudh 154. A perusal of the plaint as I have mentioned earlier, does not shew that plaintiffs have made out or pleaded a case of nuisance to the public nor elements of public nuisance have been alleged nor made out by the plaintiff that there was a case of public nuisance, the only remedy was institution of the suit provided under sub section 1 ot section 91 CPC. under this section if special damage has been caused to such person by reason of wrongful act affected person may file a suit. According to sub. section 2, no doubt the right of suit existing independant of Section 91 is not affected by sub section (1) in the present case. The plaintiffs have alleged as that by placing the plank or Takhat on the land in dispute, defendants cause threat to and interference with the plaintiffs'' right of way. The plaintiffs have pleaded the relief against the defendants seeking the decree and injunction restraining them from interfering with the plaintiffs" alleged right of way and also have sought directions that the defendant respondents be directed to remove the Takhat from the land in dispute. As such the learned counsel for the plaintiff appellants, no doubt, is correct in advancing this argument but provision of section 91(1) will not come in his way. There is a question whether the plaintiff appellants have established and proved the right of way and illegal obstruction or inter�ference with the same by the defendantrespondent on this question concurrent findings of fact have been recorded by the two courts below to the effect that the placing the Takhat by the defendant and particularly after having taken licence from Nagar Mahapalika and paying Tahbazari to it do not cause any injury to the plaintiffs''appellants. Further it has been recorded that neither any permanent constructions has been made nor is proposed to be made. This construction is of a temporary nature and further the right of way of the plaintiff is in no way affected or obstructed thereby because all the openings of the shop are free for egress and ingress to the customers and that there is no question of plaintiffs'' right of way in any way beiag affected due to Takhat placed by the defendants, Both the passages that is towards east and south of plaintiffs'' shop have got no obstruction due to takhat of defendants. The courts below have further held that the evidence on record shows that Takhat has been placed and used since long back and defendants in no way are trespassing over the kharanja land belonging to the Municipal Board, This is a pure finding of fact based on the evidence on record and no error or substantial error of law have been pointed out in this finding by the learned counsel for the appellant. This being a finding of fact pure and simple is binding on this Court in the second appeal, until and unless it is shown that the finding is vitiated by error of law of substantial nature such as the one that the finding on question of fact has been arrived at after ignoring the relevant admissible and material evidence on record on the grounds erroneous and non substantial in law or the same has been arrived at after having taken into consideration irrelevant and unadmissible evidence, the finding recorded by the Courts below can not be set aside. No such error have been pointed out by the learned counsel for the appellant. In these circumstances the findings of fact referred to above are final and are binding.

Learned counsel for the appellant in his last argument has sub�mitted that in view of sub section 4 of the section 326 of the U.P. Munici�palitiesAct, the suit could be and was filed even without giving notice to the Municipal Board. That section 326 of the U.P. Municipalities Act reads as under:

"S. 326Suit against board or its officers(1) No suit shall be instituted against the board or against the member or officer or servant of a board in respeet of an Act dene or purporting, to have been done in its or his official capacity, until the expiration of two months nest after notice in writing has been in the case of a board, left at its office and in the case of a member, officer or servant delivered to him or left at his office or place of abode explicitly stating the cause of action,, the nature of relief sought, the amount of compensation claimed and the name and the place of abode of intending plaintiff and the plaint shall contain statement that such notice has been so delivered or left. (2) If the board, member, officer or servant shall, before the action is comm�enced have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount, so tendered and shall also pay all costs incurred by the defendant after such tender. (3) No action such as is des�cribed in sub section 1 shall, unless it is action of recovery of immovable property or declaration of title thereof be commenced otherwise than within six months next after the accrual of cause of action. (4) Nothing in the sub section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which object would be defeated by the giving of the notice or the postponement of commence�ment of the suit or proceedings."

That para6 of the plaint has been to the effect that the defen�dants, with the connivance of Municipal Board, want to take possession of the land in dispute and to cause interference with the plaintiff''. right of way. As regards the allegation of the Municipal Board conniving with defendants and allowing them to take possession is concerned, the courts below have come to the conclusion that the plaintiffs have mischievously suppressed the fact that the defendants were in possession or in occupation of the land in dispute by placing the Takhat thereon with the permission and licencees from Nagar Mahapalika for the last more than thirty years and were paying the dues as Tahbazari. This shows that the plaintiffs have filed the suit concealing this fact and without giving notice to Nagar Mahapalika. When defendant respondents were making use by placing takhat in land in dispute, since long before filing suit with the permission of Nagar Mahapalika as its licensees, the cause of action if any would be not only the act of defendant respondent alone but will consist of act of Nagar Mahapalika and the defendant. Act of Nagar Palika by allowing the defendants to make a use of that land in dispute by placing takhat thereon as its licensee is also the cause of grievance as facts are disclosed and therefore the grievance of the plaintiff was not simple against the defendant No 1 and 2 but was also against opposite party no. 6 i. e. Nagar Palika. The fact of Municipal Board which the plaintiffs have alleged to be act of ''Najaiz Sajish'' (granting of lease) had been alleged to be part of cause of action for the suit, thus position is the plaintiffs'' suit without notice under section 326 of U. P. Municipalities Act was not maintainable and particularly when land was used by defendantrespondents by putting takhat etc. with the permission of Nagar Mahapalika. There was no question of the suit being frustrated by giving of notice to Nagar Maha�palika and by filing the suit after the two months period from the date of service of notice as the defendants on account of the act and permission, accorded by the Nagar Palika, was sitting on land in dispute and was keeping his takhat or plank. Thus considered in my opinion the submi�ssion of the plaintiffappellant; counsel that under sub section 4 to section 326 of U. P. Municipalities Act, there was no need to give any notice or that the suit could be filed without giving the notice required under sub. Section 1 Section 326 of the U. P. Municipalities Act has got no substance and is rejected. In view of the above in my opinion that the judgment and decree of courts below do not suffer from any error of Law or substential error of Law. The appeal is thus devoid of any merit and so it is being hereby dismissed. Costs of appeal are made easy.

(Appeal dismissed)