Rajasthan High Court - Jaipur
Kanti And Ors. vs U.I.T., Bikaner And Ors. on 13 January, 1998
Equivalent citations: AIR1998RAJ108, 1998(1)WLN1
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The present appeal has been filed against the judgment and decree dated 13-5-1988 passed by learned Additional District Judge, Bikaner in Civil Suit No. 220/85 (Chhotu Lal v. Chelo Devi and others).
2. The brief facts leading up to filing of the present appeal are that plaintiff-respondent No. 3-Chhotu Lal filed a suit against Rugha Ram Luhar (father of the appellants) in the Court of District Judge, Bikaner on 23-12-1980 for mandatory and perpetual injunction. Plaintiff-respondent No. 3 alleged in his plaint that his house is situated at Alakhsagar Road and on the south a pacca road going from D.S.N. Rly's office to Kot Gate and one road from it goes towards the shop of Sunder Lal. It is also alleged that between the house of the plaintiff and both the roads, public chowk and land of public way is in existence. The plaintiff-respondent No. 3 further alleged that the defendant No. 1 has raised construction over the land of public utility which was being used as a public way in the vicinity of the plaintiff-respondent No. 3's house by making a Kachaa hut marked with letters GJEF in the site plan. It is thereafter alleged that defendant had also encroached over the land of public utility and public way by raising his hut, upto area marked with letters CJEIHG in the site plan. It is also alleged that the plaintiff-respondent No. 3 complained about this encroachment to defendants No. 2 and 3 but no proceedings were initiated by them. According to plaintiff-respondent No. 3 the wrongful acts of defendant-appellant over the public way falls within the definition of public nuisance.
3. Defendant No. 1, father of the present appellants-Rugha Ram refuted the averments made in the plaint. It is averred in his written statement that disputed land is neither a public way nor a public chowk. He further averred in his written statement that hut is in existence over the disputed place for more than 25 years and he is living there with his family members. According to him the disputed place was lying barren for many years and now in accordance with the notification of the Government-age old possessions are to be regularised by defendants Nos. 2 and 3.
4. Defendant No. 2, Urban Improvement Trust, Bikaner also denied the plaint allegations. In its written statement it is specifically averred that there is no public way or public chowk as alleged in the plaint by the plaintiff-respondent No. 3. The existence of hut of defendant No. 1 over the disputed place was admitted for a period of more than 25 years. It is averred to be situated at 5' distance from the wall of plaintiff-respondent No. 3. Defendant No. 2 also denied about any complaint lodged by the plaintiff in this regard, in its office.
5. Defendant No. 3, Municipal Council, Bikaner also filed a separate written statement, denying the disputed land to be of public chowk and public way. It is averred in the written statement that the disputed land is open Government land as such the plaintiff-respondent No. 3 is not entitled to obtain mandatory injunction.
6. On the aforesaid pleadings of the parties the learned trial Court framed as many as 11 issues, focusing the attention of the parties to adduce evidence in support of their respective claims.
7. Plaintiff-respondent No. 3 in his support examined himself as PW 1 and his son Satya Prakash as PW 2. Defendant-appellants examined DW 1 Mohan Lal, DW 2 Salu Ram, DW 3 Chuna Ram and DW 4 Shanti Devi in support of their claim.
8. After hearing the learned counsel for the parties, learned trial Court decreed the suit in toto. Aggrieved against the judgment and decree the present first appeal has been filed.
9. I have heard learned counsel for the parties and perused the judgment and decree under appeal.
10. From the arguments of learned counsel for the parties, the following points for determination emerge in the present appeal :--
1. WHETHER the present suit is barred under Sub-section (1) of Section 91 of CPC?
2. WHETHER, the plaintiff claims title in himself, if so its effects?
3. WHETHER the plaintiff has filed the present suit under the authority, express or implied from true owner, if so its effects?
11. Point for determination No. 1 :-- As regards point No. 1, the real test would be as to whether a suit in respect of removal of public nuisance is maintainable at the behest of an individual without alleging and proving special damages to him. From the averments made in the plaint it is apparent that the plaintiff-respondent No. 3 essentially sought a relief for removal of public nuisance that is of common injury which he alleged to suffer as rest of the community of the public. No special inconvenience or damage has been alleged and proved by plaintiff-respondent No. 3 except right of way as it is available to other members of the community at large.
12. There is no manner of doubt from the averments made in the plaint and also from the evidence adduced from the side of plaintiff-respondent No. 3 that the present suit was filed for removal of public nuisance created by way of wrongful act of defendant-appellants' prede-cessor-in-posscssion, affecting the public way, therefore, in the case on hand, it does not involve determination of any right independent under Sub-section (2) of Section 91 of CPC. In such a situation it is held that plaintiff-respondent No. 3 was not entitled to file the suit on his own and he ought to have invoked the assistance of Advocate-General so that either he ought to have filed the suit himself or ought to have given permission to two or more persons aggrieved to bring the suit for removal of public nuisance affecting the public way.
13. In the present case no inherent right has been claimed by plaintiff-respondent No. 3 over the public way which may involve determination of his any independent right, therefore, the suit is not covered under Sub-section (2) of Section 91 of CPC. Private nuisance, involving special damage is neither alleged nor proved in the case, therefore, the provisions postulated under subsection (2) of Section 91 of CPC are not attracted.
14. Argument of learned Counsel for the respondents Mr. H.D. Khatri to the effect that in the present case the suit was not required to be filed either by Advocate-General or by two or more persons with his permission is not acceptable to me for the reasons stated above. The facts of the decision rendered by learned single Judge of this Court in case of Mool Chand v. Chhoga, reported in AIR 1963 Raj 25, upon which he placed reliance is not applicable to the facts and circumstances of the present case although appositely the view which I am taking in the present case is buttressed from the ratio decidendi of Mool Chand's case (supra).
15. Point for determination Nos. 2 and 3 :--In abundant caution and also in the interest of justice and fair play, instead of dismissing the present suit on mere technicality of its maintainability I would like to examine the facts of the case on merits as well. Since the point for determination Nos. 2 and 3 are interlinked, therefore, they are dealt with together.
16. It is evident from the statements on oath of PW I and PW 2 that land in dispute belongs to Urban Improvement Trust, Bikaner although it is maintained by Municipal Council, Bikaner. It is averred in the written statement filed by Municipal Council, Bikaner that the State Government is the owner of the land in question. The learned Counsel for plaintiff-respondent in paragraph 1 of his written arguments submitted that the true owner of the land in question is the Nagar Parishad, Bikaner. Admittedly, the present suit has not been filed under authority, express or implied, of Urban Improvement Trust, Bikaner, Municipal Council, Bikaner or State Government whereas contrary to it both local authorities have denied in their separate written statements the plaint allegations and had averred that neither the land in dispute is a public way nor it is a public chowk. Moreso both defendant-respondents Nos. 1 and 2 have admitted the existence of hut of the defendant-appellants for more than 25 years. State Government has not been impleaded as party in the silk.
17. Be that as it may, in the present case, precise question would be who is the true owner of the land in dispute and secondly who can file a suit for recovery of possession or in the alternatively for mandatory and perpetual injunction against a person in possession. It is admitted by plaintiff-respondent No. 3 as well as by defendant-respondents Nos. 1 and 2 that defendant-appellant is in possession over the disputed land. The factum of admitted possession of defendant-appellants is evident from the averments made in the plaint as welt as from the written statements of defendant-respondents Nos. 1 and. 2. Exclusive possession of defendant-appellants is also established from the depositions made by PW 1 and PW 2 and from the statements on oath from DW 1 to DW 4.
18. In such a situation, in my considered opinion, the defendant-appellants who are in peaceful possession of the disputed land are entitled to retain possession and only true owner can file a suit to recover possession from them and not plaintiff-respondent No. 3.
19. Admittedly, plaintiff-respondent No. 3 is not claiming ownership of the land in dispute in himself. He is claiming only right of way as it is available to other members of the community at large. According to plaintiff-respondent No. 3 constructions are raised within two or more years by defendant-appellants predecessor-in-possession which falls within the definition of public nuisance but the present suit has not been filed as envisaged under Sub-section (1) of Section 91 of CPC
20. From the facts and circumstances stated above, I am satisfied, that plaintiff-respondent No. 3 has no legal justification to file the present suit to evict the defendant-appellants who are in peaceful possession of the disputed land for more than 25 years. The defendant-appellants are liable to be dispossessed from the land in question only by the true owner and not by plaintiff-respondent No. 3, who is neither claiming title in himself nor it is alleged and proved that the present suit has been filed under the authority, express or implied, from the true owner.
21. Except the points discussed above no other point has been canvassed before me. It is true that before argument in the present appeal starts the learned Counsel for plaintiff-respondent has invited my attention towards an application under Order 41, Rule 27 moved by him for allowing him to produce an affidavit-on-record as additional evidence which was rejected orally subject to reasons followed later on.
22. Now, propose to give reasons for rejecting the aforesaid application. It is to be imbibed that parties to an appeal are not entitled to produce additional evidence whether oral or documentary before an appellate Court unless any of the conditions enumerated under Clauses (a), (aa) and (b) of Sub-rule (1) of Rule 27 of Order 41, CPC are satisfied. It goes without saying that the document which is sought to be produced as additional evidence was neither tendered nor it was refused by learned trial Court to admit it in evidence. Similarly, the plaintiff-respondent No. 3 miserably failed to establish that notwithstanding the exercise of due diligence the evidence sought to be produced as additional evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed, against was passed by learned trial Court. Thus the condition precedent as envisaged under clauses (a), (aa) of Sub-rule (1) of Rule 27 of Order 41 are not satisfied. As regards condition precedent enumerated under Clause (b) of Sub-rule (1) of Rule 27 of Order 41 is concerned suffice it to say that this Court does not require the document to be produced as additional evidence to enable it to pronounce judgment, or for any other substantial cause, therefore, the application is liable to be rejected and it is hereby rejected.
As a result of aforementioned discussion, the judgment and decree passed by learned trial Court is hereby set aside and the present appeal is allowed with costs throughout assessed to Rs. 5,000/- (Rs. Five thousand only). The suit filed by plaintiff-respondent No. 3 is dismissed.