Patna High Court
Ram Prasad Bhatt vs The Gaya Municipality And Anr. on 21 March, 1960
Equivalent citations: AIR1960PAT387, AIR 1960 PATNA 387, ILR 39 PAT 610
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Choudhary, J.
1. This is an appeal by the plaintiff. He has a double storeyed house, bearing holding No. 34, by the side of Haliday Road, now named as Krishna Prakash Road, is the town of Gaya. There is a Strip of land, bearing Municipal survey plot No, 11459, adjacent north of the Haliday Road. This strip of land is divided into three portions. The land just abutting the house of the plaintiff is an open space, and to the north of this space are municipal stalls Nos. 12 to 14. Stall No. 14 is situated in the extreme west, and in this stall defendant No. 2 who is a settlee from the Gaya Municipality has his shop and a tea-stall.
To the south of the stalls there is a footpath which forms part of the said Haliday Road. It appears that, in the year 1941, the municipality proposed to settle the above strip of land, and the plaintiff's predecessor-in-interest, Bitan Pandey, filed a title suit, No. 66 of 1941, for a declaration that the above strip of land was the road-side land and the municipality had no right to settle the same. A prayer for ad interim injunction, restraining the defendant municipality from making any transfer of the land, was also made, which was ultimately rejected at the final hearing. It further appears that, after the prayer for ad interim injunction was rejected, the municipality in the year 1942, constructed the above stalls, and thereafter the plaintiff of that title suit allowed the same to be dismissed for default.
Thereafter, the construction of the stalls was completed, and one of them was settled with defendant No. 2, who, as already stated, is holding his shop and a tea-stall in the same. There was a further agreement between the municipality and the defendant No. 2 whereby the latter was permitted to construct a second storey over the above stall, and he did construct the same. The plaintiff, there fore, instituted the suit, out of which the present appeal arises, for a declaration that the entire strip of land, bearing municipal survey plot No, 11459, is the road-side land and the defendants had no right to construct stalls thereon.
The case of the plaintiff further was that by construction of the stalls, his right of access to the Haliday Road has been infringed and the frontage of his house also has suffered because of the stalls. He further claimed that his privacy as well as the use of light and air has also been seriously infringed.
2. The municipality, defendant No. 1, as well as its settlee, the defendant No. 2, filed separate written statements, but their pleas were practically the same. It was contended on their behalf that the land in question was not the road-side land, and that it was always meant for shops and stalls, and was never used as passage, as claimed by the plaintiff. It was further raised in defence that, In view of the dismissal of the previous title suit. No. 66 of 1941, for default, this suit was barred under the provision of Order 9, Rule 9, of the C. P. C.
3. The trial Court held that the plot in question is the road-side land to be used strictly and solely for the purpose of the road, and for no other purposes, and that the municipality had no right to construct the stalls thereon. It also held that the plaintiff, as the owner of a house standing on that road, has the right of access to the main road through the plot in question and the municipality by putting up stalls Nos. 12 to 14, has infringed his right of access. It further held that the frontage of the plaintiff's house also suffers because of the stalls, and the stalls are thus a serious source of grievance to the plaintiff on grounds of access and frontage.
With respect to the claim of the plaintiff in regard to the infringement of his rights of privacy, air and light, the trial Court negatived the contention of the plaintiff, and held that there was no infringement of the above rights. On the question of law, it held that the suit was barred under Order IX, Rule 9, of the C. P. C., and, therefore it dismissed the suit. In appeal by the plaintiff, the finding with regard to infringement of the plaintiff's rights of access and frontage was not challenged, and, similarly, the finding of the trial Court negativing the contention of the plaintiff about the infringement of his rights of privacy, air and light was also not challenged.
The only point that was raised on behalf of the plaintiff appellant in the Court of appeal below was that the suit was not barred by Order IX, Rule 9, of the C. P. C., and that raised by the defendants respondents was that the plot in question was not the road-side land. Both the contentions were rejected, and the lower appellate Court held that the plot in question was the road-side land, but the suit was barred under Order IX, Rule 9, of the C. P. C. The appeal of the plaintiff was therefore, dismissed.
4. It is contended on behalf of the appellant that the suit is not barred under the provision of Order IX, Rule 9, of the C. P. C., and that, on the findings of the Court below on the merits of the case, the suit should have been decreed. On behalf of the respondents, however, learned Government Pleader has submitted that the suit of the plaintiff out of which the present appeal arises, is based on the same cause of action which the plaintiff had for instituting the previous suit, being Title suit No. 66 of 1941, and, that, that suit having been dismissed for default under the provision of Order IX, Rule 8, of the C. P. C., the present suit is barred by the provision of Order IX, Rule 9, of that Code. Order IX, Rule 8, lays down that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
From the certified copy of the order-sheet of Title suit No. 66 of 1941, Ex. 7, it appears that in that suit the defendant on 29-4-1942, filed his hazri, but the plaintiff did not take any step, nor did he respond to the repeated calls, and the suit was, therefore, dismissed on that date for default. It is evident, therefore, that that title suit was dismissed under Order IX, Rule 8, of the C. P. C., Rule 9 of that order provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. If, therefore, the present suit is based on the same cause of action on which the previous title suit was based, then there is no doubt that the present suit is hit by the above rule.
5. Mr. Shambu Nath No. II, appearing for the appellant has urged that the causes of action for the two suits are different, and that the causa of action for the present suit had not at all arisen at the time when the previous suit was filed, and, therefore, the present suit is not barred under Rule 9 of Order IX of the C. P. C. Before dealing with this question on merits, it will perhaps be better to deal with the point of law on the subject.
Reliance has been placed on behalf of the appellant on the cases of Rajah of Pittapur v. Sri Rajah of Venkata Mahipathi Surya, 12 Ind App 116, Mt. Chand Kour v. Partap Singh, ILR 16 Cal 98 (PC), Mrs, L. A. Saunders v. Land Corporation of Bengal Ltd., (S) AIR 1955 Cal 169, and Jokhi Ram v. Sardar Singh, AIR 1955 All 661. On behalf of the respondents, reliance has been placed upon a Bench decision of this Court in Gopi Ram v. Jagarnath Singh, AIR 1929 Pat 685 and a Privy Council decision in Mohammad Khalil Khan v. Mahbub AH Mian, AIR 1949 PO 78.
6. In the case of AIR 1829 Pat 685, one Guru Prasad Singh, the predecessor-in-interest of the plaintiff, brought a suit on 16-7-1918 for a declaration that the plaintiff was the sole and exclusive owner and proprietor of the mica mines and other minerals and other underground or subsoil rights of Mahal Maheshwari, and the defendants had no right, title or interest thereto or therein, and they were not entitled to the compensation money for the mica removed by the Government from the said Mahal, and for an injunction restraining the defendants from interfering with the rights of the plaintiff to the said mica mines.
That suit was dismissed for default under Order IX, Rule 8, of the C. P. C., on 14-8-1919. Thereafter, Guru Prasad Singh conveyed his title in Mahal Maheshwari on the 31st of August, 1919 to one Mr. A. C. Bose, who, in his turn, transferred his right, title and interest therein to the plaintiff on 19-3-1920. The plaintiff then instituted another suit on 27-2-1923. It was contended that the suit was barred under Order IX, Rule 9, of the Code On behalf of the plaintiff, it was contended that the assignments of 31-8-1919 and 19-3-1920, which brought the plaintiff into the Court gave him an additional cause of action sufficient to take the cause out of the operation of Rule 9 of Order IX of the Code.
It was also contended that the relief claimed in that suit was different from that claimed in the previous suit inasmuch as in the suit under consideration in that case the plaintiff claimed a decree for possession, whereas in the previous suit there was no prayer for possession, but only prayers for declaration and injunction. Relying upon the decision in ILR 16 Cal 98 (PC), it was held in that case that the cause of action did not depend upon the character of the relief prayed for by the plain tiff, but that it referred entirely to the grounds set forth in the plaint as the cause of action; or, in other words, to the media upon which the plain tiff asks the Court to arrive at a conclusion in his favour.
Their Lordships found that the plaint in the suit in question was an exact copy of the plaint filed in the suit of 1918 with two additional paragraphs, one setting out the two assignments, which brought the plaintiff into the Court, and the other reciting the dismissal of the previous suit. The date on which the cause of action arose was given in both the suits to be 5-4-1917, when a claim was put forward on behalf of the defendants before the Collector of Monghyr to the mica mines. On those facts, their Lordships held that the suit was barred under the provision of Order IX, Rule 9, of the C. P. C. The facts of the present case are materially different from those of that case, and that case, therefore, has no application to the present case.
7. In the case of AIR 1949 PC 78, the facts were these. One Rani Barkatunnissa got under a will of her husband. Raja Shamsher Bahadur, certain properties in the district of Shahjahanpur in the province of Agra, and certain properties in the districts of Sitapur and Hardoi in the province of Oudh. On her death, a dispute arose between her, relations in regard to succession to her properties, and mutation proceedings started in the revenue Courts in the two provinces. The Assistant Collector of Shahjahanpur ordered mutation of names in respect of the Shahjahanpur properties to be effected in favour of the plaintiffs, but his order was reversed by the Collector of Shahjahanpur on the 20th of June, 1928, and this order was confirmed by the Commissioner on 29-10-1928.
The mutation cases with regard to Oudh properties also were decided against the plaintiffs. The plaintiffs then filed Title Suit No. 8 of 1928 in respect of the Oudh properties, and they claimed to succeed to the same as heirs of Rani Barkatunnissa, who was alleged by them to be a Sunni. In that suit, they did not include their, claim with regard to the Shahjahanpur properties, though the order of the Collector was against them. The above suit was decreed, and the decision was finally confirmed by the Privy Council on 28-6-1934. In 1938, the plaintiffs filed another suit, being suit No. 2 of 1938, claiming the properties of Shahjahanpur.
The contention put forward on behalf of the defendants was that the suit was barred under Order II, Rule 2, of the C. P. C., which provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished, and that, if he is entitled to more than one relief in respect of the same cause of action, but he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. It may be mentioned here that as pointed out by their, Lordships in that case, the plaintiffs in the two suits claimed the properties, the Oudh properties in Suit No. 8, and the Shahjahanpur properties in Suit No. 2, as heirs of Rani Barkatunnissa, who belonged to the Sunni sect, and died on the 13th of April, 1927, and that the cause of action in the two suits, apart from other dates, arose on 13-4-1927, when the Rani died.
Their Lordships came to the conclusion that the cause of action for the two suits was the same, namely, the inheritance of the plaintiffs to the properties of the Rani, who was a Sunni, and that, on the date on which the previous suit was instituted, the plaintiffs could have claimed the relief for the properties of Shahjahanpur also. It was, therefore, held that Order II, Rule 2, of the Code was a bar to the suit. That case also, therefore, has no. factual application to the present case. But, their Lordships, after considering various decisions relating to the provisions of Order II, Rule 2, and Order IX, Rule 9, of the Code of Civil Procedure laid down certain propositions of law for interpreting the term 'cause of action' used in the above two provisions. They are as follows:
"1. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment,"
2, If the evidence to support the two claims is different, then the causes of action are also different.
3. The causes of action in the two suits may be considered to be the same if in substance they are identical.
4. The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers .... to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." Applying the above principles, it has now to be seen whether the plaintiff's cause of action for the present suit is the same as was in the previous suit, or is distinct from that.
8. The plaint of the previous title suit, namely, Title Suit No. 66 of 1941, is Ex. A in the case. It was filed by Bitan Pande, a brother of the plaintiff in the present suit, on the allegation that he was the owner of holdings Nos. 33 and 84, situated on the Haliday Road, Gaya, to the south of which was the municipal drain and to its south there was a foot-path constructed by the municipality, and that the defendant municipality was threatening to lease out or settle portions of the said footpath and the adjoining portion of the roadside land. It was stated that the plaintiff would be deprived of the use of the said portions of the footpath and the road-side land, and light and air would be considerably cut off from his house.
The plaint further recited that the defendant had no right to transfer in any way the footpath and the road-side land and any such transfer would be an unlawful invasion on the plaintiff's right. The cause of action, as alleged in the plaint, arose on the 1st of May, 1941, when the plaintiff came to know of the wrongful intention of the defendant municipality to lease out the land. The reliefs sought were a declaration that the defendant had no right to transfer in any way portion of the footpath or the road-side land in front of the house of the plaintiff, and a permanent injunction restraining the defendant from transferring the same.
The present suit has been instituted by the plaintiff, after the death of his brother, Bitan Pandey, making, 110 doubt, certain allegations to the same effect, so far as the nature and the character of the land in dispute are, concerned. It is Stated in the plaint that the plaintiff is the owner of holdings Nos. 33 and 34, which at present bear holding No. 34 only, situated on the Haliday Road, now named as Krishna Prakash Road, Gaya, and to the south of this house and beneath the southern platform there are a municipal drain and the road-side land, bearing municipal survey plot No. 11459, which is a part of the Haliday Road, bearing plot No. 11458.
If is stated that the plaintiff and the other house-owners, whose houses abut on the road side land, have a right of access to their houses as well as rights of frontage, privacy and free use of light and air from all sides of that plot. Up to this extent, the averments in the plaints of the two suits are almost similar. The plaintiff then states as to how his brother instituted the previous title suit against the municipality on its contemplating to, lease and settle the road-side land and how, on prayer for ad interim injunction being rejected at the final hearing, and on construction of stalls by the municipality thereafter, that suit, according to him, became infructuous, and was allowed to be dismissed for default.
Then it is alleged in the plaint as to how the cause of action for the present suit arose, and it is stated that, in the year 1942, after the prayer for ad interim injunction was finally rejected, the municipality, instead of leasing out the land, itself constructed stalls Nos. 12 to 14 on the said road-side land, and thereafter gave a lease of stall No. 14 to the defendant No. 2. It is further stated that, later on, the defendant municipality, by a registered deed of agreement, dated 17-9-1952, which was actually registered on 22-9-1952, has permitted defendant No. 2 to make further construction of a shed with rooms over the roof of these stalls, and the defendant No. 2 has started construction of the same.
It is stated that the above acts of the defendants have aggravated the infringement of the plaintiff's rights stated above. It is further stated that the municipality had no right to construct any stall on the land in question or to lease the stall with defendant No. 2 or with any one or to permit defendant No. 2 to construct any shed on the roof of the stalls.
The cause of action for the present suit is alleged to have arisen to the plaintiff in January, 1942, when the municipality started construction of the stalls, on the 17th of September, 1952, when the defendant No. 1 entered into the agreement with defendant No. 2, as stated above, and on the 1st of November, 1952 when, in pursuance of the above agreement, the defendant No. 2 started the work of construction on the roof of the stalls. The reliefs sought are that a declaration be made that defendant No. 1 has no right to convert the roadside land in plot No. 11459 to any other use than its use as the road-side land for the use of the general public and the owners of the houses abutting the same, and also that the construction of the municipal stalls Nos. 12 to 14 lying in front of the plaintiff's house and the agreement with defendant No. 2 permitting him to put up additional construction over the same are illegal and ultra vires of the powers of the municipality and are in derogation of the plaintiffs right of unobstructed access and frontage and privacy and free passage of light and air to his house from all sides of the road-side land. Further prayers have been made for restraining permanently the defendants from making any further construction and for an order for removal of the stalls from over the roadside land in the plot in question.
9. The facts disclosed in the plaints of the two suits are, in my opinion, materially different, and it is not disputed that, on the date on which the plaint in the previous suit was filed, the plaintiff had no cause of action for a suit for removal of any construction on the land in question. On the language of Order II, Rule 2, of the Code of Civil Procedure, the present suit, therefore, could not have been barred.
It is true that the cause of action for the present suit arose to the plaintiff during the pendency of the previous suit, and he could have, if so advised, amended the plaint disputing the right of the defendant municipality to construct the stalls' on the land in question and for removal of the same. But, he was not bound to do so, and he was within his rights to institute a separate suit against the infringement of his rights by the constructions made by the municipality.
It could not be said in such a case that the plaintiff omitted to include the above claim in his suit, as required by the provision of Order II, rule 2, of the Code, obviously because the cause of action for the present suit had not even arisen at the time when the previous suit had been filed. If Order II, Rule 2, of the Code is not a bar to such a suit, it cannot be said that the cause of action for the two suits is the same.
The meaning; of the term "cause of action", as used in Order IX, Rule 9, of the Code in my opinion, is exactly the same as used in Order II, Rule 2, of the Code, and the principle enunciated by the Privy Council in the case of AIR 1949 PC 78 is applicable to that term under both the rules. In my opinion, therefore, on the facts of the present case, it cannot be said that the present suit is hit by the provision of Order IX, Rule 9, of the Code.
10. It was observed in the above Privy Council case that the plaintiff's cause of action to recover the properties consisted of those facts which would entitle them to establish their title to the properties, and it is contended on behalf of the respondents on this observation that the facts which would entitle the plaintiff to establish his rights against the municipality are the same in both the cases and, therefore, the cause of action in both the suits is the same. As was pointed out by a Bench of the Allahabad High Court in (S) AIR 1955 All 661, the above observation of their Lordships of the Judicial Committee should not be understood as laying down the proposition that the facts necessary to establish the title or the right of the plaintiff alone were sufficient to constitute the cause of action for the suit, and that the facts relating to its infringement were immaterial.
This is apparent from the subsequent portion of the judgment in the Privy Council case where their Lordships considered the infringement of the title or the right in the two suits which were under consideration before them and approved the observation of the High Court to the effect that infringements in the two suits in substance arose out of the same transaction or formed part of the same transaction.
11. In the above Allahabad case, one Sheobaran Singh was the owner of certain proprietary share in a zamindari appertaining to which he had some sir lands also in his possession. He made a gift of both the zamindari share and the sir lands to his descendants, namely, plaintiffs 1 and 2 and their mother, defendant No. 4, one share, plaintiffs 3 and 4 and their another share, and defendants 5 and 6 and their father, a third share, the shares being unequal. Defendants 5 and 6 and their father sold a portion of their zamindari interest to the appellants, who later on brought a suit for profits against the above descendants of Sheobaran Singh. Plaintiffs 1 to 4 were minors, and they were impleaded as defendants being represented by their guardians.
The suit was decreed on 4-12-1925; and, in execution of that decree, the entire remaining zamindari interest in the hands of the descendants of Sheobaran Singh was sold and purchased by the appellants on 22-1-1929. A portion of the decretal amount, however, remained unrealised, and, in order to satisfy the same defendants 5 and 6, the father of plaintiffs 3 and 4, for self and as guardian of his sons, and the mother of plaintiffs 1 and 2, for self and as guardian of her sons, executed, on 20-4-1931, a deed of relinquishment in respect of some of the plots which were in their sir possession. In 1938, plaintiffs 1 to 4 instituted a suit against the appellants for possession over their two-thirds share out of the above zamindari share.
Their case was that the zamindari was their ancestral property, and Sheobaran Singh had, no right to make a gift of the same, that the plaintiffs were not properly represented in the suit for profits brought by the appellants, and their guardians were negligent. It was prayed, therefore, that the decree and the consequent auction sale were not binding on them, and they were entitled to get possession over their shares in the zamindari. The case of the plaintiffs was accepted, and the suit was decreed. Then, in 1942, plaintiffs 1 to 4 brought another suit for recovery of possession over their two-thirds share of the lands covered by the above deed of relinquishment.
It was contended on behalf of the appellants that the suit was barred by Order II, Rule 2, of the C. P. C, Just as in the present case, the recitals in the plaints of the two suits, so far as they related to the foundation of the plaintiffs' claim, were exactly the same, namely, that the property was ancestral, that Sheobaran Singh had no right to make a gift of it to different persons, that the decree passed in the appellants' suit for profits was not binding upon them as their guardians were negligent in defending the suit, and that the sale in execution of the decree was consequently void and not binding on them.
Then there were additional facts narrated in the suit under consideration in that case that, as the decree for profits obtained by the appellants was not binding on the plaintiffs and there was no real consideration for the deed of relinquishment, it was not binding on the plaintiffs to the extent of their shares. The cause of action for that suit was given to have arisen on 20-4-1931, the date on which the deed of relinquishment was executed. Their Lordships, after applying the principle of the above Privy Council case reported in AIR 1949 PC 78, held that the cause of action for the suit was entirely different from that which was the basis of the previous suit.
With reference to the argument that the plaintiffs cause of action to recover the properties consisted of those facts which would entitle them to establish their title to the properties, their Lordships made the following observation, with which I perfectly agree:
"If the 'cause of action' means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the Court, it must obviously include not only the facts which would entitle the plaintiff to establish the right which he seeks to establish, but also its infringement because without the infringement of the right it can hardly be said that the cause of action has arisen for the suit. In every suit the plaintiff has to mention the date when the cause of action arose for the suit. The date is the date of the infringement of the right of which the plaintiff complains. The right (including the facts constituting its foundation) and its infringement must, therefore, both constitute the cause of action for a suit."
The same view was taken in the case of AIR 1955 Cal 169. In that case, in March, 1949, the plaintiff, a company, served upon the defendant a notice to quit requiring her to vacate certain premises on the expiry of that month, as the plaintiff required the said premises for building and rebuilding purposes. The defendant, however, did not vacate the house, as required by the said notice and so a suit for ejectment was instituted. That suit was eventually dismissed for default on the 21st of November, 1949.
The plaintiff, therefore, again served another notice to quit in December, 1949, terminating the defendant's tenancy with the end of that month alleging again that the plaintiff required the said premises for building and rebuilding purposes. The defendant not having vacated the house, a fresh suit was brought on 6-2-1950. It was held in that case that the March notice to quit would undoubtedly be an essential part of the cause of action of the earlier suit and in the same-way the, December notice would fee an essential part of the cause of action for the later suit for ejectment, and that these two notices were obviously not the same, and so the cause of action in the two suits would be different.
12. The facts of the present case are practically similar to those of the above Allahabad case, and, in my opinion, that case is on all fours applicable to the present case. The view taken by me gains further support from the Calcutta case referred to above, and two earlier decisions of the Privy Council in 12 Ind App 116 (PC) and ILR 16 Cal 98 (PC), on which reliance has been placed by counsel for the appellant, as stated above.
In the case of Rajah of Pittapur, 12 Ind App 116 (PC), the plaintiff sued to recover immovable property in consequence of having been improperly turned out of possession, & afterwards sued to recover from the same defendant moveable property in consequence of its wrongful detention. The plaintiffs title to the said estate as well as to the half share of the personality arose under a will of one Bharayamma. It was held by their Lordships that the claim in respect of the personality was not a claim arising out of the cause of action which existed in consequence of the defendants having improperly turned the plaintiffs out of possession of the zamindari property. It was a distinct cause of action altogether and did not arise at all out of the other.
In Chand Kour's case, ILR 16 Cal 98 (PC), two of the reversioners brought an action for a declaratory decree and for an injunction forbidding alienation of the properties of deceased Kahan Singh, which were then in possession of his widow holding them as a widow's estate. That suit, however, was dismissed for default under Section 102 of the old Code of Civil Procedure. Thereafter, the widow made a gift of her husband's estate to certain persons. The plaintiffs, some of the other reversioners, instituted another suit for obtaining a declaration that the deed of gift by the widow was inoperative and could not affect their reversionary rights. It was contended in that suit that the suit was barred due to the previous suit having been dismissed for default. After considering the provisions of Sections 102 and 103 of the old Code, which are equivalent to Rules 8 and 9 of Order IX of the present Code, their Lordships held that the ground of action in the previous suit was an alleged intention on the part of the widow to affect the estate to which the plaintiffs had a reversionary right by selling it, in whole or in part, or by affecting it with mortgages.
The cause of action set forth in the present plaint was not mere matter of intention, and it did not refer to either sale or mortgage. It consisted in an allegation that the first defendant had in point of fact made a de present gift of their whole interest to a third party, who was the second defendant. That of itself was a good cause of action if the appellants right was what they alleged. It was a cause of action which did not arise, and could not arise, until the deed of gift was executed, and its conclusion followed the conclusion of the previous suit.
13. On a consideration of the facts of the case, in the light of the decisions referred to above, my concluded opinion is that the cause of action of the plaintiff for the present suit is not the same as that on which the previous suit was based, and that it never arose when the previous suit was filed. As observed in the Privy Council case of Chand Kour ILR 16 Cal 98 (PC), the ground of Action in the plaint of the previous suit was an alleged contemplation of the municipality to lease or settle the road-side land, whereas the cause of action for the present suit consists in an allegation that the municipality has constructed stalls on the land in question, and has settled the same with defendant No. 2. That of itself is a good cause of action for the present suit, and it is a cause of action which did not arise, and could not arise, until the stalls were constructed after the ad interim order of injunction was vacated in the previous suit.
14. On the merits of the case, there is a finding of the trial Court, which has not been reversed by the lower appellate Court, that the land in suit is road-side land and the municipality had no right to construct the stalls thereon. There is also a finding of the trial Court, not reversed by the lower appellate Court, that the plaintiff's right o£ access to the main road through the plot in question as well as his right of frontage have been infringed by construction of the stalls. With respect to another, portion of the plot in question, there was another case, which came up to this Court in Second Appeal No. 1535 of 1943, and a Bench of this Court, by its decision dated 16-5-1945, held that the land in question, namely, plot No. 11459, is a road-side land, and the municipality had no right to construct pucca stalls on it.
It was further held that the municipality had no unrestricted right to the use of road-side land to the infringement of the rights of the plaintiffs. The judgment of this Court is Ex. 4 (a) in the case. It is, therefore, clear that the' land in suit is roadside land, and the acts of the municipality in constructing the stalls thereon, leasing out the same to defendant No. 2 and permitting the said defendant to put up further structures on the roof thereof are unlawful and without any right of power in the municipality, and the rights of the plaintiff of access and frontage have been infringed thereby. The plaintiff is, accordingly, entitled to a decree, even though, as found by the trial Court, there has been no infringement of his right of privacy and use of free light and air.
15. Counsel for the appellant has raised a further point that the action of the municipality, as stated above amounts to a continuing wrong, and, therefore, the plaintiff got fresh cause of action from every moment of the time during which the wrong continued. In view of my above decision, however, I do not propose to deal with this point.
16. The result, therefore, is that the appeal is allowed with costs throughout, and the suit of the plaintiff is decreed. It is declared that the defendants had no right to put any construction on the land in suit, and they must remove the stalls Nos. 12 to 14, with any further construction made thereon in connection therewith by defendant No. 2, as alleged by the plaintiff, under the agreement dated 17-9-1952, within one month from this date, failing which the same will he removed through Court at the cost of the defendants. The defendants are further permanently restrained from making any construction on the land in suit.
Ramaswami, C.J.
17. I agree.