Uttarakhand High Court
Durga Bahadur vs Smt. Asha Thapa And Another on 26 July, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 295 (M/S) of 2016
Durga Bahadur ....... Petitioner
versus
Smt. Asha Thapa & another ....... Respondents
Mr. Tapan Singh, Advocate for the petitioner.
Mr. Rajendra Dobhal, Sr. Advocate assisted by Mr. Devang Dobhal,
Advocate for the respondents.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.02.2016, passed by learned I Addl. District Judge, Dehradun, in misc. civil appeal no. 81 of 2015, Smt. Asha Thapa vs Durga Bahadur and another (Annexure 7 to the writ petition).
2) Plaintiff-petitioner filed a civil suit for the relief of permanent prohibitory injunction against defendants- respondents in the court of Civil Judge (Jr. Div.), Dehradun, restraining the defendants from interfering in the possession of the disputed property detailed and specified at the foot of the plaint. Plaint map was also annexed. An application under Order 39 Rules 1&2 CPC was also filed.
3) According to the petitioner, the land in dispute was purchased by him through registered sale deed dated 20.10.1986. The petitioner also constructed his house and 2 erected boundary wall over the land purchased by him. In the sale deed, 8 feet wide pathway has specifically been mentioned. In the year 2000, Smt. Bhunti and another threatened to close the pathway of the petitioner. Petitioner filed a civil suit no. 08 of 2000, Durga Bahadur vs Smt. Bhunti and another, which was decreed by trial court. First appeal against the same was also dismissed, vide judgment and decree dated 06.05.2015. The respondents, thereafter, threatened to demolish the wall of the petitioner. Petitioner filed a civil suit for permanent prohibitory injunction against the respondents bearing O.S. no. 233 of 2015, Durga Bahadur vs Asha Thapa and another, with a prayer not to demolish the wall of the petitioner.
4) Petitioner also moved an interim relief application supported by an affidavit, whereby an interim relief was sought that during the pendency of the suit, the respondents be restrained from demolishing the wall of the petitioner. Sub Divisional Magistrate, Dehradun, vide order dated 24.07.2015, passed an order to demolish the wall. It is alleged that the S.D.M. had no authority to pass such an order. The petitioner filed voluminous documents along with the plaint. Copy of registered sale deed dated 25.10.1986 and copy of original suit no. 08 of 2002 along with copy of judgment dated 28.05.2004 were among those documents filed with the plaint. Petitioner also moved an application for spot inspection through civil court Ameen, who inspected the spot and submitted his report on 31.08.2015.
35) Plaintiff proved his prima facie case and balance of convenience etc. Respondent no. 1 filed her objection against the interim relief application supported by an affidavit. Learned trial court, after considering the rival submissions, allowed the interim injunction application, vide order dated 15.09.2015. Feeling aggrieved by the said order, respondent no. 1 preferred a misc. civil appeal no. 81 of 2015, Smt. Asha Thapa vs Durga Bahadur and another. Respondent no. 1 is daughter-in-law of respondent no. 2, who are jointly living together in a house. Respondent no. 2 did not challenge the order dated 15.09.2015. Respondent no. 2 filed a suit against the petitioner, whereby he claimed pathway over petitioner's property. The suit filed by respondent no. 2 has been dismissed.
6) It is the submission of learned counsel for the petitioner that learned lower appellate court, without reversing the findings recorded by the trial court and without considering the fact that the wall of plaintiff- petitioner does not exist on spot, committed mistake in holding that the defendant has no alternative pathway by passing a cryptic and unreasoned order on 03.02.2016. It is the submission of learned counsel for the petitioner that the respondents have another pathway to approach their house. It is also the submission of learned counsel for the petitioner that the lower appellate court has conducted a mini trial.
7) Learned trial court, in its order dated 15.09.2015, has held that 61 feet long wall is existing on 4 the spot which fact is established by Ameen's report and, therefore, the plaintiff is entitled to interim relief because the defendant has stated in her objections that the plaintiff has unauthorisedly constructed a wall in the public pathway on 14.07.2015. According to learned trial court, that is the only pathway available to the plaintiff to enter his house. The finding recorded by the trial court does not appear to be based on cogent reasons. Per contra, learned lower appellate court has held that the pathway is a public pathway. Defendant does not have alternative way to enter his house. If temporary injunction application is allowed, the defendant cannot have ingress and egress to his house. At present there is no construction over disputed pathway 'AB'. Even if the defendant is permitted to have ingress and egress in the disputed pathway, the plaintiff will not be put to any inconvenience, inasmuch as, he can have access to his house without any hindrance as usual. In the Appellate Court's judgment, in appeal no. 29 of 2004, Smt. Bhunti vs Durga Bahadur, the Appellate Court, in para 30 had inferred that the disputed pathway is a public pathway meant for the public and nobody has any right to interfere in the same. The finding that disputed pathway is a public pathway has not been challenged before any court.
8) Ameen's report was called for by the co-
ordinate bench of this Court vide order dated 10.01.2017. Ameen's report dated 18.03.2017 indicates that the plaintiff and defendant met him on the spot. The property shown in the annexed map with the letters 'ABCD' was claimed by the plaintiff. The wall shown by letters 'AB' is the 5 disputed wall. The space shown by red ink is the house of the defendant. Plaintiff told Ameen that he uses the pathway indicated by letters 'GHDI'. His own property is situated in the south of this pathway. To the contrary, the defendant claimed that she uses such pathway (shown by letters GHDI) for ingress and egress of her house. Plaintiff has constructed an iron gate at the place shown by letters 'DI' and has obstructed the pathway by constructing a wall at the place shown by letters 'AJ'. When the Ameen enquired about the alternative pathway for coming to the house of the defendant, Ameen found that there is 5 feet wide road shown by letters E to A, but a woman named Indu Thapa, claimed that 5 feet wide road to be her private pathway. Thus, this pathway was found obstructed at place 'A' by raising a brick wall and by closing the same with iron gate at place 'E'.
9) It appears, on the basis of map annexed with Ameen's report, that there is no pathway leading to the house of the defendant. A narrow lane has been shown from south to north, but, according to learned Senior Counsel for the defendant, it is too narrow to accommodate two persons entering together. There is yet another pathway which has been shown by letters 'EA', but the woman, whose house is adjoining to such pathway, has put up an iron gate and, therefore, it is not possible for the defendant to enter her house from east to west. A pathway has been shown with letters 'DIGH' but, since, the plaintiff has put up an iron gate at the place 'DI', therefore, defendant cannot have access to her house, which she 6 earlier had, for entering into her house with the passage shown by letters 'AJDI' (or 'AJGH'). Since the plaintiff has erected a wall at the place shown by letters 'AJ', therefore, it is impossible for the defendant to enter her house.
10) It is the submission of learned Senior Counsel for the defendant-respondent that the pathway shown by letters 'AJGH' was a public pathway which has been declared as such by the Executive Magistrate in proceedings under Section 133 Cr.P.C. and, therefore, the plaintiff cannot deny the access to anybody through such public pathway.
11) At this stage, it will be very useful to reproduce paragraph nos. 4 to 13 of the counter affidavit filed on behalf of respondent no. 1. The same is reproduced here- in-below:
"4. That plaintiff / petitioner filed original suit no. 8 of 2000, Durga Bahadur vs Bhunti Devi, giving rise to civil appeal no. 29 of 2004, Bhunti Devi & others vs Durga Bahadur, wherein it was held vide judgment and decree dated 06.05.2015 by learned 4th Addl. District Judge, Dehradun that the passage in question is not owned by plaintiff / petitioner and in fact the same is a public passage and general public has right to ingress and egress over the said passage and a particular person have no authority to create obstruction in use of the public passage. The said judgment dated 06.05.2015, passed in civil appeal no. 29 of 2004, is binding upon petitioner. The said judgment and 7 decree is final. Plaintiff have filed a suit giving rise to present writ petition on the basis of said judgment and decree dated 06.05.2015 and his entire case stands demolished as the same is contrary to the judgment and decree dated 06.05.2015. The suit filed by plaintiff / petitioner is not legally maintainable and is abuse and misuse of process of law. Once it is finally adjudicated that the passage is a public passage, no further dispute could have been raised by the plaintiff based on a plea that it is individual passage of plaintiff. Plaint of original suit no. 233 of 2015 is liable to be rejected even suo-motto by learned trial court.
5. That since the plaintiff was obstructing in use of public passage over by the residents of the locality, Sri Trilok Singh Thapa husband of deponent, Shyam Singh Thapa and Bir Singh Thapa approached S.D.M. Dehradun informing him about obstruction and nuisance created by plaintiff in the public passage and reqeuested to exercise his powers under the Code of Criminal Procedure. Beased on the said letter vide order dated 16.07.2015, S.D.M. Dehradun directed Survey Naib Tehsildar, Sadar to submit the report and to act accordingly.
6. That vide order dated 24.07.2015, learned S.D.M. Sadar, Dehradun passed an order deputing Tehsildar Sadar, Dehradun to remove obstruction from the public passage in the light of judgment and decree dated 06.05.2015.
7. That on 27.07.2015, deponent moved an application before District Magistrate, Dehradun and S.P. City, Dehradun for providing police help and for appointing the Magistrate in order to remove obstruction from the public passage. Based on such application deponent was directed to deposit Rs.26,080/- and the same was deposited on 29.07.2015.8
8. That S.D.M. Sadar also apprised A.D.M. Administration about the obstruction created over the public passage and sought appropriate order from him vide letter dated 28.07.2015.
9. That vide order 30.07.2015, District Magistrate, Dehradun directed the S.S.P. Dehradun to provide appropriate police force on spot as demanded by S.D.M. Sadar, Dehradun.
10. That vide report dated 06.08.2015, S.D.M. Sadar, Dehradun apprised District Magistrate about the facts and specifically stated that Sri Durga Bahadur is creating obstruction in use of public passage and is in hand in gloves with police and accordingly sought appropriate direction.
11. That plaintiff / petitioner feeling aggrieved from order dated 24.07.2015, passed by S.D.M. Sadar, Dehradun filed revision no. 7 of 2014-15, Durga Bahadur vs Asha Thapa, before the court of Addl. Commissioner, Garhwal Mandal, Camp Dehradun. Vide judgment and order dated 24.08.2015, learned revisional court dismissed the revision filed by Sri Durga Bahadur with the specific finding that the order impugned in revision dated 24.07.2015 is perfectly as per law in the consonance with judgment dated 06.05.2015 of learned 4th Addl. District Judge, Dehradun.
12. That it is pertinent to mention here that plaintiff on 27.07.2015 approached the civil court by instituting O.S. no. 233 of 2015, Durga Bahadur vs Asha Thapa, claiming his individual right over the said passage, however, vide judgment dated 06.05.2015, in civil appeal no. 29 of 2004, it was held final that the said passage is a public passage and no individual person have any right to create obstruction in use of public passage by others and sought a relief to cover up his own wrong. In other words, sought protection from the court of law towards obstruction created by him in the 9 use of public passage by the public. Such suit on the face of it is not legally maintainable in view of provisions of Section 41 of Specific Relief Act.
13. That the revision preferred by petitioner against order dated 24.07.2015 which is the basis of cause of action of instituting O.S. no. 233 of 2015 have already been dismissed. Moreover, in the light of provisions of Section 133(2) of Code of Criminal Procedure, 1973, suit is not legally maintainable. In view of settled proposition of law that something which cannot be done directly, could not be permitted to be done indirectly."
12) Learned lower appellate court has appropriately dealt with the issue. Such issue is largely based upon Ameen's report, a reference of which has been given by this Court in one of the foregoing paragraphs of this judgment. In addition to this, this Court appreciates the averments given in the counter affidavit of respondent no. 1, relevant portion of which has been reproduced here-in-above in its entirety. This Court need not repeat those facts again for the sake of brevity.
13) Attention of this Court is drawn by learned counsel for the petitioner towards a decision rendered by Hon'ble Supreme Court in in Maharwal Khewaji Trust (Regd.), Faridkot vs Baldev Dass, (2004) 8 SCC 488, wherein it was observed that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being 10 caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case, public pathway appears to have been obstructed and, therefore, learned lower appellate court was justified in holding that when the property in question has been declared a public pathway, no one is allowed to encroach upon the same.
14) Reliance is placed by learned counsel for the petitioner towards the judgment rendered by Hon'ble Apex Court in State of Assam vs Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694, wherein it was held that a precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. In the instant case, application under Order 39 Rules 1&2 CPC has been duly scrutinized by the trial court as well as by the learned lower appellate court, the respondents appear to have no egress and ingress, the only public pathway is obstructed by the petitioner and, therefore, learned lower appellate court has rightly allowed the misc. civil appeal.
15) The parameters for deciding temporary injunction application and suit for permanent prohibitory injunction are entirely different. One is governed by Order 11 39 Rules 1&2 CPC and the other is decided on the basis of provisions contained in Specific Relief Act.
16) Suffice will it be to say that learned lower appellate court has rightly allowed the misc. civil appeal, setting aside trial court's order dated 15.09.2015. When the property in question has been declared a public pathway, no one is allowed to encroach upon the same. Prima facie, the plaintiff-petitioner has not been able to show that the land in question is his personal property, rather, it appears that the same is a public pathway.
17) Writ petition is, therefore, dismissed.
18) It is, however, directed that learned trial court shall decide the suit for permanent prohibitory injunction, as expeditiously as possible, untrammeled by any of the observations made by this Court in any of the foregoing paragraphs of this judgment.
(U.C. Dhyani, J.) Dt. July 26, 2017 Negi 12 13