1. Appellant-defendant has laid this second appeal under Section 100 CPC to assail judgment & decree dated 4th of March 2016, passed by Addl.
District Judge No.1, Jodhpur Metropolitan (for short, ‘learned first appellate Court’), whereby learned first appellate Court has affirmed
judgment and decree dated 19th of May 2014, passed by Addl. Civil Judge (Jr. Div.) No.3, Jodhpur Metropolitan (for short, ‘learned trial
Court’), decreeing the suit of plaintiff-respondent No.1 for permanent and mandatory injunction.
2. Facts sans unnecessary details, as emerge from the record, are that plaintiff filed a suit for permanent and mandatory injunction against appellant-
defendant and Municipal Corporation, Jodhpur and its Chief Executive Officer, inter-alia, stating that in the western side of his house one temple exists
and in between plaintiff and first-defendant’s house, there lies some open space which is just like a Chowk and is used as a way. It is further
averred in the plaint that defendant encroached over the land adjacent to his house left out after the boundary of temple and has raised garage-type
construction admeasuring about 10’ x 12’ which is being used by him to park his car. Plaintiff further averred that said encroachment has
caused great hardship to the persons passing through the way. It is also the case of the plaintiff that though a representation was made to Municipal
Corporation but same bore no fruitful results as such he has filed the suit with the prayer to restrain the defendant No.1 by permanent injunction not to
close the way of Chowk and create any obstruction. The plaintiff further sought direction against defendant Nos.2 & 3 not to regularize the
encroachment of defendant No.1 and to dismantle the unauthorizedly constructed garage.
3. Upon service of summons, appellant-defendant filed written statement to the suit and pleaded that the plaintiff has no house of his own in the
vicinity of Makrana Mohalla rather he is in occupation of the property belonging to Devsthan Department and has no right to file suit in the nature of
public interest. It was further pleaded that no obstruction is caused by him and a positive assertion was made that the garage was constructed by his
father in his lifetime to which he has made no change, therefore, it is wrong to say that he has made any encroachment. According to the defendant,
the disputed garage is very small and a car cannot be parked therein. It was contended that at the time of construction no objection was raised either
by the plaintiff or anyone else and the present suit is filed just to harass him. With these pleadings, the appellant-defendant prayed to dismiss the suit.
4. A written statement was also filed by Municipal Corporation, Jodhpur stating that land of a public way or Chowk cannot be encroached by anyone
and it has right to remove such encroachments after giving proper opportunity to concerned party. It was contended that since the notice by plaintiff
and other residents was sent on 19.10.1992 and suit is laid on 24.01.2003, it is time barred. It was emphasized that due notice was given to the
defendant, who appeared and sought time to file reply. Municipal Corporation further stated that steps have been taken and defendant has been called
to submit his ownership documents. With aforesaid pleadings, it was prayed that no decree be passed against it.
5. Learned trial Court, on the basis of the pleadings, framed three issues for determination. In support of their case, respondent-plaintiff examined
three witnesses PW-1 Brahmanand, PW-2 Guman Singh and PW-3 Sushila Devi and in documentary evidence produced Exs.1 to 6. The
appellant/defendant neither examined any witness, nor submitted any documents to substantiate his defence. Finally, the learned trial Court, by its
judgment dated 19.05.2014 decreed the suit against appellant-defendant. Feeling aggrieved by the same, appellant preferred an appeal before the first
appellate Court. The first appellate Court dismissed the appeal and affirmed the judgment & decree of learned trial Court. Before the first appellate
Court, appellant laid an application under Order 41 Rule 27 CPC for taking additional evidence/document on record. The said application of the
appellant did not find favour of the learned first appellate Court.
6. Mr. Vinay Jain, learned counsel for the appellant, submits that the findings of learned Courts below are perverse and not in consonance and
conformity with the evidence and other materials on record. Learned counsel would contend that both the Courts below have not examined the lis
involved in the matter in right perspective and, while non-suiting the appellant, material facts were completely overlooked. Mr. Jain urges that even if
there is a concurrent finding of fact, this Court is not loathed with the power to examine the perversity of the findings recorded by the Courts below.
Mr. Jain has strenuously urged that merely because appellant did not adduce evidence, case of the respondent/plaintiff cannot be strengthened. He
further contends that to prove the case, plaintiff has to stand on his own legs and cannot take advantage of loopholes in the evidence of defendant.
Mr. Jain has vehemently argued that learned first appellate Court has seriously erred in rejecting application of the appellant under Order 41 Rule 27
CPC. Harping on proposed substantial questions of law, learned counsel submits that these questions require consideration and adjudication.
7. Learned counsel, in support of his submissions, has relied on following judgments:
(1) Pandya Manubhai Muljibhai alias Himatlal Vs. The Umreth Town Municipality & Ors. [(1964) 5GLR 1026]
(2) Gunabhooshanammal Vs. Santha & Ors. [(1999) 3 MLJ 520]
(3) Kanti & Ors. Vs. U.I.T., Bikaner & Ors. [AIR 1998 (Raj.) 108]
(4) Anil Kumar Shrivastava Vs. Mukesh Chand Saxena & Ors. [2013 Indlaw (Raj.) 1710]
(5) Municipal Corporation Vs. State of Rajasthan & Ors. [2008 (1) WLN 334]
(6) State of J.K. Vs. Hindustan Forest Co. & Ors. [(2006) 12 SCC 198]
(7) K. Venkataramiah vs. A. Seetharama Reddy and Ors. (AIR 1963 SC 1526)
(8) Aisha Begam and Ors. vs. Shahnaz Begam and Ors. [2015(3) PLJR 562]
(9) Upendranath Jena and Ors. vs. Soumendranath Banarjee and Ors. [106 (2008) CLT233 ]
(10) Municipal Board Vs. Abdul Hameed & Ors. 1980 [LawSuit (All) 560]
(11) M.M.Khajuria Vs. Abdul Rashid [AIR 2001 J&K 10]
(12) Laxman Wamanrao Nagapure Vs. Shankar Haribhau Adhau and Chandrakant Laxman Nagapure [2014 (6) BomCR 195]
(13) R. Appadurai Vs. T.K. Samikknnu [SA No. 2007 of 2003 & CMP No. 18348 of 2003, decided by Madras High Court on 22.07.2015]
(14) Himani Alloys Ltd. Vs. Tata Steel Ltd. [(2011) 15 SCC 273]
(15) Faqir Chand (through Lrs.) Vs. Laila Ram (through Lrs.) [AIR 1994 Delhi 161]
(16) Balkrishna Savalram Pujari & Ors. Vs. Shree Dnyaneshwar Maharaj Sansthan & Ors. [AIR 1959 SC 798]
(17) Divisional Manager, Aravali Golf Club and Anr. Vs. Chander Hass & Anr. [(2008) 1 SCC (LS) 289]
(18) S.C. Chandra & Ors. Vs. State of Jharkhand & Ors. : AIR 2007 SC 3021
(19) Makhan Lal Bangal Vs. Manas Bhunia & Ors. [(2001) 2 Supreme Court Cases 652 ]
(20) Lalengvara Vs. Laldawangliana Sailo & Ors. [(2016) ACC 489 (Gau.)]
(21) Ramjas Foundation & Anr. Vs. Union of India & Ors. JT 2010 (12) SC 134]
(22) Sm. Nani Bala Saha & Anr. Vs. Sm. Charu Bala Saha & Anr. [AIR 1979 Cal 308]
8. Mr. V.L. Thanvi, learned counsel appearing for respondent-plaintiff, submits that it is pure and simple case of concurrent finding of fact recorded
by both the Courts below, and therefore, the impugned judgments require no interference in this second appeal. Learned Counsel, Mr. Thanvi,
contends that both the learned Courts below have recorded the concurrent findings based on sound appreciation of documentary and oral evidence,
which cannot be disturbed in second appeal. Mr. Thanvi, learned counsel, would urge that learned trial Court initially decreed the suit by adjudicating
appellant encroacher on public way on the strength of uncontroverted evidence of the respondent and the learned first appellate Court has also
concurred with the said finding upon reappreciation of evidence is sufficient to non-suit the appellant whose crusade is to protect illegal encroachment.
It is contended by learned counsel that involvement of substantial question of law is sine qua non for maintaining second appeal and the present appeal
is bereft of any question of law much less substantial question of law, therefore, no interference is warranted in exercise of jurisdiction under Section
100 CPC.
I have heard learned counsel for the parties, perused the judgments of Courts below and scanned the record of the case.
9. In the instant case, the suit was filed contending that the defendant encroached over the land of way/chowk which has created hurdles and hardship
for the inhabitants of the vicinity and people visiting the temple. Though the possession and construction of dispute garage is claimed to be old one
from the time of ancestor of the defendant but it is not in dispute that the defendant has no ownership right over it as he has failed to produce any
document evidencing his ownership over it, as such has no right, title or interest over the same. The proceedings of Municipal Corporation in view of
statements of independent witnesses also made out a clear-cut case of encroachment and the hurdle/obstruction created on account existence of
garage on the land of public utility, therefore, the learned trial Court rightly ordered for demolition of the same. Any encroachment on a public land
causing hindrance/obstruction to the citizens in their ingress and egress is not only impermissible but also dehors the law. Section 245 (old Section 203)
of the Municipalities Act empowers Municipality to remove encroachment or obstruction upon public land and Section 252 envisages power to prohibit
use of public streets for certain kind of traffic.
10. The contention of learned counsel for the appellant pertaining to wrongful rejection of application under Order 41 Rule 27 CPC by the learned first
appellate Court though sounds euphonious but it lacks any substance. As a matter of fact, learned first appellate Court, while rejecting appellant’s
aforesaid application, has recorded cogent reasons. In totality, the reasons for nixing application are clear and explicit on the anvil of Rule 27(1)(a) of
Order 41 CPC. The finding of the learned first appellate Court in this behalf makes it abundantly clear that appellant never made any endeavour
before the learned trial Court to admit the evidence but for craving dismissal of the suit as infructuous in his application under Section 151 CPC
accompanying the said document.
11. I may hasten to add that application under Section 151 CPC filed on behalf of the appellant before learned trial Court alongwith lease-deed was
dismissed on 24th of September 2010. However, while challenging the final judgment of the learned trial Court before the first appellate Court, the
appellant has not assailed the said order under Section 105(1) CPC. A right available to the appellant against the order dated 24th September 2010
being an interlocutory order, which was not appealable, ought to have been exercised before the learned first appellate Court while questioning final
judgment and decree of the learned trial Court. Having chosen not to assail before the learned first appellate Court, now the appellant cannot be
allowed to raise this issue in the second appeal.
12. The discretion exercised by the learned first appellate Court in declining prayer of the appellant under Order 41 Rule 27 CPC cannot be faulted
even on the touchstone of clause (aa) of Rule 27 and therefore the same also do not constitute any question of law much less substantial question of
law. Moreover, in the backdrop of peculiar facts and circumstances of the case, clause (b) of Rule 27 cannot be pressed into service. It is also
noteworthy that appellant has not tendered oral or documentary evidence before learned trial Court despite availing many opportunities. Even after
reopening evidence of the appellant on payment of cost, he has failed to produce his evidence on six succeeding dates, is sufficient to show total
apathy and callousness on his part. Supreme Court, in the matter of Union of India Vs. Ibrahim Uddin [(2012) 8 SCC 148], while examining powers of
the appellate Court under Order 41 Rule 27 CPC, held:
“It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the
absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party
guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had
ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide:
State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam).
13. It is also noteworthy that positive assertion of the respondent about construction of disputed garage by the appellant on public way/public lane or
open land in Para 1 & 3 is not specifically denied by him. Denial of the averments made in the plaint by the respondent is vague and evasive, and
therefore, amounts to admission as per Rule 3 to 5 of Order 8 CPC. The doctrine “non-traverseâ€, i.e. acceptance by non denial, therefore, can
very well be pressed into service. That apart, appellant has also not furnished any proof in support of pleadings further rendered repudiation of
respondent’s positive assertions vulnerable. Strangely, Municipal Corporation too has filed an absolute vague and cryptic written statement without
tendering any evidence. Law is trite that pleadings are no substitute for proof. As against these omissions of the appellant and other defendants, the
oral evidence of the respondent/plaintiff in this behalf remained unimpeached and none of his witnesses are cross-examined on this crucial issue. This
sort of situation clearly and unambiguously unfurls encroachment by the appellant on part of the public way, lane, open chowk or open space for
constructing disputed garage, which is impermissible.
14. Although the additional evidence in the form of lease deed, allegedly executed by Municipality in favour of the appellant, has not been taken on
record by learned first appellate Court, nor this Court feel inclined to disturb the said decision but even if the said lease deed is taken into
consideration, the same cannot change complexion of the case to respondent’s detriment. I am aghast to observe that how and in what manner
lease of the disputed land was granted to the appellant clandestinely during pendency of litigation wherein besides appellant, Municipality is also a
party. The Municipal Corporation has also admitted in written statement about initiation of action against appellant for alleged omission without
furnishing any outcome of the same further establishes connivance between appellant and Municipal Corporation to hush-up the matter dehors law.
Thus, it is a clear case of impropriety and an attempt to overreach process of the Court.
Such land cannot be allotted by the Municipal Corporation on lease or in any other form of alienation to an individual at the cost sacrificing public
rights.
15. My aforesaid view is fortified by judgment of this Court in the matter of Smt. Kishna Devi vs. Vishnu Mitra and Anr. [AIR 1982 (Raj.) 281],
wherein the Court observed:
“. . . It is true that the Urban Improvement Trust has sold this lane in dispute to the defendant but by that alone, rights of the plaintiff-petitioner
cannot be deemed to have been extinguished. Similarly, grant of permission by the Urban Improvement Trust is no bar for a civil court to grant a
temporary injunction, if any legal right of the plaintiff is infringed. According to the written statement of the Urban Improvement Trust, 5 ft. wide
vacant space is to be kept by the defendant in this lane in question while making constructions, but the defendant interprets it to mean that it is for the
use of defendant only.
x x x x x x
I am in agreement with the submission of Shri Panwar that when civil courts are required to deal with the alleged encroachment on public streets,
sanitary lanes, public roads, public parks or public chowks, which are always left open by the city planning authorities in order to ensure proper
hygienic conditions about the light, air, sanitation, then the civil courts should insist on enforcement of such public rights in which the people, as a whole
are very much concerned and affected. In those cases, individual rights should yield to public rights and individual interested litigations should be
treated as subsidiary and secondary and in a given case yield to the public interest. In my view, this is solemn duties of the civil court to protect public
rights and to come down heavily against the efforts of unscrupulous officers or private persons or some-times even the public authorities, who, on
account of ulterior motives or vested interests or ignorance or corruption, alienate the public health and public hygiene and public sanitation to vested
interests of individuals who purchase them on the strength of coins.â€
In a later judgment, Devi Vs. State of Rajasthan & Ors., reported in RLR 1984 page 938 (Devi vs. State of Rajasthan & Ors.), while examining
provisions of Panchayat Act 1953, a coordinate Bench of this Court observed that Gram Panchayat has no right to sale land which forms part of the
public way. The Court held:
“The land which form part of the public way cannot be sold by the Gram Panchayat because those lands which form part of the public street and
pathways are vested in the Gram Panchayat only as a trustee thereof and the Gram Panchayat has no right to dispose of the same by way of sale or
otherwise.â€
Likewise, a Division Bench of this Court in case of Nizamuddin Vs. Board of Revenue [1991 (1) RLR 84] held that the land which forms part of the
way can only be utilized as a way and not otherwise because the general public has a right to use that land as public path and no encroachment can be
permitted on that public path. It has been further held that even if any encroachment has been made it cannot be regularized but should be removed.
16. This Court, in the matter of B.L. Bakiwala Vs. Jaipur Development Authority & Ors. [1993 (1) WLC (Raj.) 306], while considering the
connotation of “strip of land†clearly and unambiguously observed that a public lane/street can never be a strip of land and a local authority has no
right to allot the same to any individual person by describing it as “strip of landâ€. The Court held:
“The second limb of the argument of Mr. Maloo also carries weight that once the approved scheme of Malviya Nagar was completed and
executed and a public lane/street stood declared and dedicated to the public, the J.D.A. does not have any power/authority to close the same and allot
its land to any person. Mr. Maloo submitted that a public lane/street vests in the Municipal Council, Jaipur and there is no authority either in the
Municipal Council or J.D.A. to allot any part of a public lane or street to any individual person by describing it as a ‘strip of land’.
‘Public Street’ has been defined in Section 3(26) of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the ‘Municipalities
Act’) as under:
“3(26) ‘public street’ means any street:
(a) over which the public have a right of way, or
(b) which has heretofore been levelled, paved, metalled, channeled, sewered or repaired out of municipal or other public funds, or
(c) which under any provision of the Act, becomes a public street.â€
Similarly, ‘street’ has been defined in Section 3(32) as under:
“3(32) “Street means any road, bridge, foot-way, lane, square, court, alley or passage accessible, whether permanently or temporarily to the
public or any portion of the public, whether a thoroughfare or not, and includes on either side:
(i) the drains or gutters and the land upto the defined boundary, notwithstanding the projection over such land of any varandah or other super-
structure;
(ii) every space, notwithstanding that it may be private property or partly or wholly obstructed by any gate, chain or other barrier, if it is used by any
person, whether or not occupying any abutting property, as a means of access to or from any public place or thoroughfare.â€
A ‘strip of land’ has been defined under the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 as a piece of land adjoining on
existing plot which cannot be put to independent use and which shall in no case exceed 100 square yards in area.
Thus, a public lane/street can never be a ‘strip of land’. On a public land/street, the public has a right to pass and repass over the whole width.
Similarly, an owner of the property adjacent to a public street has got a right of access to such street at any point at which his land actually touches it.
All such public streets/lanes and their appurtenances vest in the Municipalities. No one has got a right to built any wall or erect any fence or other
obstructions or projection or make any encroachment in or over any street except as provided in the Municipalities Act. When a street is vested in the
Municipality, such vesting does not transfer to the Municipal Authority, the rights of an owner in the site or soil over which the street exists. It has the
right to manage and control the surface of the soil.
In The Municipal Board, Manglaur V. Mahadeoji Maharaj (AIR 1965 SC 1147), it has been held in para 9 of the judgment as under:
“Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the
surface of the soil and ""so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as
a street"" It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject
to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and,
therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.â€
In Pyarelal Satpal V. Santlal (1972 RLW 51), a Division Bench of this Court has also held that the Municipality has no power to let out any part of a
public highway to a private person for setting up a stall or carrying on business.
Chapter II of the Municipalities Act deals with the powers of the Municipalities in respect of streets but it does not contain any power to sell or allot
any part of the public street.
From the above discussions, and taking into consideration the various provisions of the Municipalities Act regarding to the public lanes/streets and the
powers of the J.D.A. to modify/alter a sanctioned scheme/project, and harmonious approach would be that the powers of modifications in an approved
scheme/project can be exercised by J.D.A. under Chapter VII of the Act before the said scheme is executed. After the execution of the scheme, if a
public lane/street stands declared and dedicated to public, its land cannot be sold even by the J.D.A. describing it as a ‘strip of land’. The rights
of the public and of the neighbours come into play in relation to such lane/street. In the present case, the J.D.A., after the approval of the scheme,
allotted plots to the public and a metalled road was also constructed in the land/street in question. The plot holders have also constructed their houses
as per the scheme. At the stage, the J.D.A. cannot close the public lane/street even in exercise of powers U/s. 42(2) of the Act, as a right is created
in the public to use it for an appropriate kind of traffic. The public are entitled to pass or repass over such public lane/street. Similarly, the rights of the
neighbours to have an access to such public lane/street cannot be taken away, likewise a corner plot holder cannot be deprived of the benefits of a
corner plot by closing such public street. Judged from this angle also, the action of the respondent-JDA closing the public lane/street is illegal and
unsustainable in the eye of law.â€
17. Learned counsel for the appellant has relied upon many judgments to highlight powers of the second appellate Court, maintainability of the suit and
power of the appellate Court under Order 41 Rule 27 CPC but the fact situation in the present appeal is entirely different and therefore all these legal
precedents are clearly distinguishable. While concurring with the ratio decidendi of the aforesaid judgments, it may be observed that same cannot
apply in abstract sense divorcing facts and circumstances of an individual case. Case in hand is a glaring example of total callousness and apathy on
the part of appellant in not specifically denying encroachment on public land and further not furnishing any proof to the pleadings. A litigant, who has
audacity to encroach on a public land and by sheer manipulation and maneuvering got it allotted clandestinely from the Municipal Corporation dehors
the law, cannot be allowed to take shelter of all these pleas and assistance of legal precedents in the second appeal. Therefore, in my considered
opinion, all these judgments cannot come to the rescue of the appellant for espousal of the cause in the instant appeal.
In view of concurrent finding of fact recorded against the appellant by both the Courts below, based on sound reasonings, the Court has not
considered it wise and prudent to discuss every individual legal precedent in detail in the peculiar facts and circumstances of the case.
18. Upon perusal of the judgments rendered by both the Courts below, in my opinion, the Courts below have not committed any error much less
manifest error in appreciation of evidence. The legal position is also no more res integra that in second appeal normally Court is not expected to
interfere with the concurrent finding of fact unless it is shown that finding is perverse, contrary to evidence available on record, or recorded in
ignorance of vital evidence. No such situation is forthcoming in the instant appeal.
This being the position, I am constrained to observe that no question of law much less substantial question of law is forthcoming in the instant appeal
requiring adjudication in exercise of second appellate jurisdiction. The so called proposed substantial questions of law are pure questions of facts and it
is trite that while exercising second appellate jurisdiction, Court cannot enter into factual arena. Therefore, sans involvement of any substantial
question of law in present appeal, no interference with the impugned judgments under Section 100 CPC is warranted.
In view of foregoing discussion, the instant appeal fails and the same is hereby dismissed.
The costs are made easy.
