Punjab-Haryana High Court
Baldev Singh Chahal vs Madan Lal Gulati on 5 August, 1999
Equivalent citations: (2000)124PLR265
JUDGMENT Arun B. Saharya, C.J.
1. In this Regular Second Appeal filed under Section 41 of the Punjab Courts Act, 1918 (prior to its amendment w.e.f. 9.12.1998), the appellant defendant has challenged the judgment and decree dated September 13, 1979, passed in appeal by the District Judge, Patiala, dismissing his first appeal and confirming the decree for permanent injunction passed by the trial Court, thereby restraining him from interfering with the Respondent-plaintiffs peaceful enjoyment of the street or from raising any construction so as to obstruct use of the said street on the side of his house, situated in Pili Sarak, Raghomajra, Patiala.
2. In the suit, the plaintiff has claimed that he, and the other residents of the locality have been using the street in dispute adjoining the house in his possession for the last more than 3 and 1/2 years; and that the defendant is trying to obstruct the same by raising a wall. Contesting the suit, the defendant has pleaded, inter alia, that there is no street and the piece of land in dispute is his own property. An additional objection is raised that the suit is not maintainable.
3. On the basis of the personal inspection of the site, and the documentary and oral evidence on record, namely, Sale Deed Exhibit P2 and Site Plan Exhibit P1 and the deposition of PW1, PW2 and PW3, the trial Court has granted the injunction and decreed the suit. The relevant findings recorded in paragraph Nos. 11 and 13 of the trial Court judgment are extracted below:-
11. "From the evidence on record, therefore, I find that the plaintiff is owner of the property adjoining the property in dispute towards the Eastern side and the site in dispute is a public street as per admissions of the defendant himself in the Sale Deed and the Site Plant Exhibit P-1 and Exhibit P-2 respectively........"
13. "I have already seen while discussing issues No. l and 2 that the site in dispute is a road which has been left as such by the defendant before selling the adjoining house to the plaintiff and there is a clear mention of the same in the sale deed as well as in the site plan on the record, although there is no cogent evidence to show that the plaintiff or the other persons have been using it uptill now but that does not change the nature of the site. The plaintiff now proposes to make construction towards that side and use it as a second approach to his house.....He is a purchaser of adjoining house and has a right to use this road and as such he is entitled to the injunction prayed for......."
4. In first appeal, the learned District Judge has affirmed the aforesaid findings of the trial Court and turned down objection to maintainability of the suit on the plea that it has been instituted without obtaining leave of the court under Section 91 of the Code of Civil Procedure (CPC).
5. Now, in the second appeal, learned counsel for the appellant has challenged the decree on three grounds. First, he has urged that the suit for injunction filed without complying the requirements of Section 91 CPC, must fail. Secondly, the plaintiff has also failed to prove special damage, if any, caused to him by the alleged wrong in respect of the public street in dispute. Thirdly, that the two Courts below have erred in making out a new case for the use and enjoyment of the road/street in question, though it is not a public street.
6. The learned District Judge has rejected the plea that the suit did not lie without obtaining leave of the Court under Section 91 C.P.C. as it is not taken in the written statement. The objection that is taken relates to maintainability of the suit "in the present form". There are various other objections available in law in respect of maintainability of a suit in the given form. The specific objection under Section 91 C.P.C. is really not taken. Even, otherwise, in view of the following discussion, the suit is not hit by Section 91 C.P.C.
7. It is no doubt true that the plaintiff has averred at one place only in paragraph 2 of the plaint that the street in dispute is a public street, which has not been proved by the evidence on record. The learned District Judge has quite rightly observed that this Single averment is not to be construed too rigidly and that the plaint has to be read as a whole. On reading the plaint, specially paragraph Nos. l, 3, 4, 5, 6 and 7 thereof, it is clear that the plaintiff is seeking enforcement of his individual right; and, not a remedy for a wrong affecting the public envisaged under Section 91 C.P.C. Looking at the pleadings in the correct perspective, the judgment of the District Judge cannot be faulted. The second plea regarding special damage is equally fallacious, as the claim of the plaintiff for grant of perpetual injunction for use of the street in dispute arises out of the stipulation made for that purposes inter se parties under the sale deed Exhibit P-2, For the very same reasons, it is wrong to say that two lower Courts have made out for the plaintiff an inconsistent or new case.
8. Now, on merits, it is pertinent to note that the plaintiff has purchased from the defendant two plots No. 10 and 12, measuring 214 Sq. Yards, including the built up house on plot No. 12, which is a parcel, carved out of a huge 'kothi' that belonged to the defendant, by the sale deed dated June 14, 1972, Exhibit P-2. The transferred property is clearly depicted and described in the Site Plan Exhibit P-1 and the rights and obligations of the parties are clearly stipulated in the Sale Deed, Exhibit P-2. The Site Plan Exhibit P-1, depicts the 15 feet wide passage and describes it as the proposed 'road' on the West side of the property sold to the plaintiff. Likewise, boundaries of the property sold to the plaintiff are delineated in the sale deed Exhibit P-2; but, the 15 feet wide passage is described as 'street'. Apart from this street on the West side, there is another 15 feet wide proposed road shown on the South side of the property in sale deed Exhibit P-2. It expressly stipulates grant to the plaintiff Madan Lal Gulati the right to use the paths 'street' road', shown on the South and the West sides of the parcel of 214 square, yards open land and built up property sold by Exhibit P-2.
9. During the hearing of the appeal, a question did crop up whether the right to use the paths on two sides of the property vide Exhibit P-2, constituted an easement in terms of Sections 8 and 12 of the Indian Easements Act, 1882. But, learned counsel for the appellant objected to the consideration of this question on the ground that easement is a precarious and special right and the pleading for enforcement of such a right should be precise and clear. Since, the case of easement is not pleaded by the plaintiff, this question need not be discussed any further.
10. Section 38 of the Specific Relief Act, 1963 postulates that perpetual injunction may be granted to the plaintiff to prevent the breach of an obligations existing in his favour, whether expressly or by implication. It is also noteworthy that sub-section (2) of Section 91 C.P.C. itself lays down that nothing in this Section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. Thus, a suit for perpetual injunction under Section 38 of the Special Relief Act is not affected by the provisions made under Section 91 C.P.C.
11. Stipulation made in the sale deed exhibit P-2, granting to the plaintiff the right to use the street/road in question, carries with it a corresponding obligation on the part of the defendant to permit it to be so used by the plaintiff. It is for the prevention of the breach of this obligation existing in his favour that the plaintiff filed the suit for perpetual injunction in the case in hand. The findings of the trial Court regarding the existence of the obligation on the part of the defendant for the use of the road/street in dispute by the plaintiff is fully supported by the stipulation made for the purpose in Exhibit P-2, which has been affirmed by the learned District Judge in appeal by the impugned judgment and decree.
12. For the reasons stated herein above, no case is made out for interference with the concurrent findings of fact in the second appeal. 13. The appeal is, therefore, dismissed with cost.