Hari Ram Vs
Jyotiprasad & Anr.
this judgment and order, we propose to dispose of the aforesaid appeal which is
filed by the appellant herein after being aggrieved by the judgment and order
passed by the High Court in RSA No. 2698 of 2008 affirming the judgment and
decree passed by the trial Court in Civil Suit No. 160 of 2003 which was affirmed
by the First Appellate Court in Civil Appeal No. 92 of2007. These facts, therefore,
make it crystal clear that the present appeal is directed against the
concurrent findings of fact of the High Court, the first Appellate Court i.e.
the judgment of the Additional District Judge and the trial court which was the
Court of Civil Judge (Junior Division).
order to appreciate the contentions raised before us by the learned counsel appearing
for the appellant, it would be necessary to set out certain basic facts leading
to filing of the present appeal.
suit was filed by the respondent herein contending interalia that all the six
persons including respondent No. 1 have their common interest in the disputed street
along with co-inhabitants of the same area. It was stated that the residential houses
of the respondents are falling in the site plan which indicates that there is a
common street for ingress and egress of the general public. It was alleged in
the plaint that earlier Bal Kishan Dass who was examined as PW-4 was the
original owner of the entire area out of which he curved out a colony selling
plots in favour of various parties. It was also stated in the plaint that at
that time itself a 10 feet wide public street was left on the ground as
detailed in the site plan for the common use of all the plot holders of the colony,
but further allegation was that the appellant/defendant from the time of possession
of his plot had evil eye on the aforesaid disputed street and the defendant No.
1 and he namely defendant No. 2encroached upon substantial part of the same
making the street narrowed down causing inconvenience to the users of the said street.
Incidentally the suit was filed invoking Order I Rule 8 of Code of Civil
Procedure [called in short `C.P.C.'].
the plaint it was further stated that earlier the respondent No. 1 as
complainant filed a complaint under Section133 of the Code of Criminal Procedure,
1973 (for short "the Cr.P.C.") which was decided in favour of the
plaintiff/respondent No. 1 and the said judgment was passed by the SDM.
the matter was challenged before the Punjab and Haryana High Court, the High
Court held that the matter which is agitated relates to disputed facts and therefore
requires evidence and that the dispute between the parties could only be
effectively decided if a civil suit is filed. As the High Court had held that
the dispute between the parties would be decided by filing a civil suit, consequently
the aforesaid plaint was filed in the Court of Civil Judge (Junior Division)
which was registered as Civil Suit No. 160of 2003.
Nos. 1 and the present appellant as defendant No. 2filed a combined written
statement raising objections regarding the maintainability of the suit and also
with regard to the merit of the contentions raised in the plaint. On the basis
of the pleadings of the parties, four issues were framed by the trial court to
the following effect: 1. Whether the defendants have made illegal /
unauthorized construction over the public street by way of illegal encroachment
as shown in red colour in the attached site plan shown by letters ABCD situated
at village Matlauda, Distt. Panipat ? OPP. 2.In case issue No. 1 is decided in
favour of plaintiff, then whether plaintiff is also entitled to injunction, as prayed
for? OPP. 3.Whether suit filed by the plaintiff is not maintainable in the
present form? OPD. 4.Relief.
substantiate his case, the plaintiff/respondent No. 1 examined 8 witnesses and produced
some documents whereas the present appellant as defendant No. 2 examined
himself as DW-1 as a sole witness. After recording the evidence adduced by the
parties the learned Civil Judge (Junior Division) heard the parties and thereafter
by a judgment and decree dated 6.12.2007 decreed the suit and a permanent
injunction was issued directing the removal of unauthorized construction from
the ground as shown in the site plan. Since, the defendant No. 1 had already
removed his portion fill legal construction, the present appellant was given
one month's time to remove all such constructions failing which respondent No.
1 was given their legal right to get the said construction removed on his own expenses
which was allowed to be recovered from the defendants. The defendants were
further restrained from raising any further construction in future on the
aforesaid 10 feet Rasta as detailed in PW - 7A.
aggrieved by the aforesaid judgment and order passed by the trial court, an appeal
was filed before the Additional District Judge, Panipat whereas the appeal was
registered as Civil Appeal No. 92 of 2007. The aforesaid appeal was heard by
the Additional District Judge who by his judgment and decree dated25.7.2008 dismissed
the appeal filed by the appellant. Thereafter, the appellant filed a second
appeal before the Punjab and Haryana High Court which was registered as RSA No.
a judgment and decree dated 31.7.2009, the aforesaid appeal was also dismissed
by the High Court holding that there is no specific question of law involved in
the aforesaid appeal.
still aggrieved, the present appeal was filed by the appellant herein in which notice
was issued and on service thereof, we heard the learned counsel appearing for
Anoop G. Choudhary, learned Senior Counsel appearing for the appellant very
forcefully argued that none of the judgments and decrees passed by the courts below
is justified. He submitted that the suit itself was barred by limitation but despite
the said fact and despite the fact that a specific stand was taken in the
written statement contending that the suit is barred by limitation, no such
issue was framed by the trial Court and no decision was rendered by the trial
court as also by the appellate Court on the said issue and that the High Court was
not justified in dismissing the plea raised by the appellant on the ground that
the cause of action is a continuing cause of action and, therefore, it cannot
be said that the suit is barred by limitation. His second contention was that
there could and should have been no finding regarding the encroachment made by
the appellant in absence of production of any official document to indicate
that there was in fact a public street used by the residents of the area. He submitted
that no evidence has been led to prove and establish that it was a Public
Street on which encroachment was made by the appellant. His last submission was
that the suit was said to be in representative capacity as shown in the plaint
but the formalities for instituting a case i.e. representative suit was not
followed and therefore the suit should have been dismissed at the very threshold
aforesaid submissions of the learned senior counsel appearing for the appellant
were refuted by the learned counsel appearing for the respondents who placed
before us the findings recorded by the three courts below and relying on the
same, it was submitted that the present appeal has no merit at all.
the light of the aforesaid submissions of the counsel appearing for the parties,
we also perused the records very carefully. We would first deal with the plea
of limitation as raised before us by the appellant.
records placed before us do disclose that the appellant in his written
statement took up a plea that the suit is barred by limitation. However,
despite the said fact no issue was framed nor any grievance was made by the
appellant for non-framing of an issue of limitation.
going through the records, we do not find that the appellant has made any
submission before the trial court as also before the first appellate court
regarding the plea of limitation. Such a plea is seen to have been made before
the High Court. The said plea which was made before the High Court was
considered at length by the High Court and the High Court held that although
such a plea was not raised either before the trial court or before the appellate
court, the same could be raised before the High Court in view of the provisions
of Section 3 of the Limitation Act which places an obligation upon the Court to
discuss and consider such a plea despite the fact that no such plea was raised
and argued before the Trial Court as also before the First Appellate Court.
High Court after considering the aforesaid plea held that the suit cannot be said
to be barred by limitation as an encroachment on a public street is a continuing
wrong and therefore, there exists a continuing cause of action. The records
disclose that initially a complaint under Section 133 of Cr.PC was filed which
was pursued with all sincerity upto the High Court. But the High Court held that
the dispute between the parties could be better resolved if a proper civil suit
is filed and when evidence is led with regard to the disputed questions of fact.
We find from the records that immediately thereafter the aforesaid suit was filed
seeking issuance of a mandatory injunction. In view of the aforesaid facts and
also in view of the fact that encroachment on a public street by any person is
a continuing cause of action, we find no merit in the said contention.
act of encroachment is a wrong committed by the doer. Such an encroachment when
made to a public property like encroachment to public road would be a graver
wrong, as such wrong prejudicially affects a number of people and therefore is
a public wrong. So long any obstruction or obstacle is created to free and unhindered
access and movement in the road, the wrongful act continues thereby preventing
the persons to use the public road freely and unhindered. Therefore, that being
a continuing source of wrong and injury, cause of action is created as long as
such injury continues and as long as the doer is responsible for causing such
this stage it would be apposite to refer to and rely upon Section 22 of the
Limitation Act, 1963, which reads as follows: "In case of a continuing
breach of contract or in case of a continuing tort, a fresh period of limitation
begins to run at every moment of the time during which the breach or the tort,
as the case may be, continues." This court had the occasion to deal with Section
22 of the Limitation Act, 1963, in the case of Sankar Dastidar v. Shrimati Banjula
Dastidar and Anr reported in AIR 2007 SC 514, in which the Supreme Court held
that when a right of way is claimed whether public or private over a certain
land over which the tort-feaser has no right of possession, the breaches would
be continuing, to which the provisions of Section 22 of the Limitation Act,
1963,would apply. Therefore, in our considered opinion the plea that the suit
is barred by limitation has no merit at all.
next plea which was raised and argued vehemently by the learned senior counsel
appearing for the appellant was that the suit was bad for non-compliance of the
provisions of Order I Rule8 of the CPC. The said submission is also found to be
without any merit as apart from being a representative suit, the suit was filed
by an aggrieved person whose right to use public street of10 feet width was
prejudicially affected. Since affected person himself has filed a suit, therefore,
the suit cannot be dismissed on the ground of alleged non-compliance of the
provisions of Order I Rule 8 of the CPC.
this connection, we may appropriately refer to a judgment of the Supreme in Kalyan
Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti and Ors.
reported in AIR 1990 SC396. In paragraph 13 of the said judgment, this Court
has held that suit could be instituted by representative of a particular community
but that by itself was not sufficient to constitute the suit as representative
suit inasmuch as for a representative suit, the permission of Court under Order
I Rule 8 of the CPC is mandatory.
paragraph 14 of the said judgment, it was also held that any member of a
community may successfully bring a suit to assert his right in the community property
or for protecting such property by seeking removal of encroachment there from
and that in such a suit he need not comply with the requirements of Order I
Rule 8 CPC. It was further held in the said case that the suit against alleged
trespass even if it was not a representative suit on behalf of the community
could be a suit of this category.
that view of the matter and in the light of the aforesaid legal position laid
down by this Court, we hold that the suit filed by the plaintiff/respondent No.
1 was maintainable.
to the appellant no official document was placed and no official witness was
examined to prove and establish that the suit land was a public street in which
encroachment is made by the appellant. At this stage it would be appropriate to
mention that the suit was initially instituted against two defendants namely defendant
No. 1 and defendant No. 2. The appellant herein was defendant No. 2 in the said
suit. So far as defendant No. 1 is concerned, the records disclose that the
Panchayat of the area took a decision that both of them have encroached upon a
public property and the street and therefore they should remove the
encroachment. It is disclosed from the records that pursuant to the aforesaid
decision of the Panchayat, the defendant No. 1 removed his encroachment after admitting
that he had also encroached upon some area of the 10feet wide street which fact
he admitted before the panchayat and later on he removed the said encroachment.
The aforesaid fact is established from the statements of PW-1. Jyoti Parshad,
PW-5 -Sadhu Ram and PW-6 - Ram Pal who were present and participated in the
said Panchayat also corroborated the said admission before the Panchayat.
in all 8witnesseswereexaminedby the plaintiff respondent No. 1. PW-3, Dharam
Singh Patwari who was examined in the suit proved the report of the BDO who had
visited the disputed property on 18.1.1995 after which he also submitted a report
certifying that an encroachment has been made by the appellant over the
disputed street. Bal Kishan Dass who was also examined as PW-4 had specifically
stated in his evidence that he had carved out a colony in the year 1981-82 and
he had sold the plots to the plaintiff as well as defendants and other inhabitants
of the village and towards eastern side of the plot of the defendant/appellant
he had left a street of 10 feet width.
against the aforesaid evidence adduced on behalf of the plaintiff/respondent
No. 1, the appellant examined himself as DW-1wherein he only took a stand that
disputed property is not a part of the street and that after purchasing the plot
he had constructed the house and despite the said fact no objection was taken and
therefore it cannot be said that he had constructed a house also on a part of
the said disputed suit property.
appreciation of the aforesaid evidence, all the three courts namely the High
Court, the First Appellate Court as also the trial court held that the
aforesaid disputed suit land is a part of the public street where the appellant
has encroached upon by constructing a part of the house. The aforesaid findings
are therefore findings of fact. Public Officer namely Patwari was examined who
had proved the report submitted by the BDO stating that part of the suit
property is a public street.
PW-7A filed by the plaintiff/respondent is a site plan which proves and
establishes that there is a public street of 10feet width. In all the sale
deeds of the area as disclosed from the statement of PW-4 Bal Kishan Dass, the
aforesaid street of 10 feet width is shown and the afore said evidence go un rebutted.
Thus there exists a street of 10 feet width. It is also proved from the
evidence on record that the appellant has encroached upon the suit property consisting
of the aforesaid street of 10 feet width. That being the position, we find no infirmity
in the judgment and decree passed by the Trial Court and affirmed by the First
Appellate Court and by the High Court in the Second Appeal.
therefore, find no merit in this appeal which is dismissed with costs, which is
assessed by us at Rs. 10,000/-.The decree passed by the trial court is confirmed.
If the appellant fails to vacate and remove the unauthorized encroachment within
a period of 60 days from today, it will be open for the plaintiff/respondent No.
1 to get the decree executed in accordance with law.
terms of the aforesaid observations and directions, the appeal is dismissed.
[Dr. Mukundakam Sharma]
[Anil R. Dave]