Darshan Kumar Kohli v. Joginder Pal Kaura & Ors.

Mr. M.S.Sachdev, Advocate, for the appellant. Mr. Gaurav Mohunta, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against the judgment and decree of the Courts below by which his suit for permanent injunction restraining the defendants from interfering in the common street and for mandatory injunction directing the defendants to remove the construction already raised in the common street, has been dismissed. Admittedly, the dispute is with regard to a street, which according to the plaintiff is a common street, whereas according to the defendants it is private. The learned Trial Court, while dismissing the suit of the plaintiff, observed as under: - “Any street would be termed as a public street, if it is shown that the public in general used the street for their daily use, it has been argued that the plaintiff has been using the same for the parking of their vehicles and for urinating purpose. However, the two witnesses examined by the plaintiff have their shops located far away from the place and RSA No.1689 of 2010 (O&M) -2- ***** they have not stated that they have been parking their vehicles or have been using the property in dispute for the purposes of urinating. It would be pertinent to refer to the fact that the plaintiff admits that he has a sewerage connection in his shop. Meaning thereby that there is no occasions for him to use the place for the purpose of urinating as alleged and had it been the case that other persons of the vicinity had been using it for the purpose of urinating, their testimony would have been the clinching factor in this case. However, the plaintiff has chosen not to examine any of the person having their shop/houses in the immediate vicinity of the property in dispute. Accordingly, it cannot be said that the property in dispute is a public street and in fact the use of term Gali Mushtarka in Ex.P1, Rasta Mushtarka in Ex.PW5/2, Private Gali in Ex.D2 and private Gali Sanji in Ex.D3 and Sanji Rasta in Ex.P3 only reflects that the street is common between the persons who are owners of the property towards which it leads. For the term Mushtarka only means that the land is common to the owners of the property. Accordingly, the defendants being the owners of the property towards which it leads, they have all the right to raise construction over the same and as such, no permanent injunction can be granted to the plaintiff in this regard and they being entitled to raise construction, can not be directed to demolish the construction raised by them.” The learned Trial Court also decided issue No.4 against the plaintiff on the question of locus standi. In appeal, the learned First Appellate Court observed as under: - “11. As far as report of Local Commissioner is concerned, it is Ex.DW4/A. The local commissioner RSA No.1689 of 2010 (O&M) -3- ***** has stated that construction is old one and two/three years old and he has not stated so from where he has assessed the same and even Ashwani Kumar DW2 admitted in the cross examination that lintel was constructed in the first week of October 1999. So the report of Local Commissioner is washed away by own witness of defendant. As far as common passage is concerned, the plaintiff/appellant is vehemently fighting tooth nail for declaring the same to be street and he alleges that even sale deed recorded earlier when there was no litigation the passage was recorded as street in the sale deeds and further that it is categorically recorded in the sale deeds which is not even disputed by the defendant/respondent that it is not so recorded but they simply alleged that they were not party to the suit and they have recorded themselves and not binding upon them. Further in Ex.P3 it is recorded as Godaam Degrey which states godown of others whereas in para No.6 of the plaint it is alleged as Well and it is a different version altogether in Ex.P3 and plaint and even in Ex.PW3/2 the southern side is recorded as Rasta Mushtarkan which is sale deed dated 04.02.1997 and further Ex.D2 dated 11.10.1991 records in the southern side as Gali private and the same is document of defendants themselves. So it is clear that they themselves have recorded on the southern side as street private. Further the arguments that affidavits are not properly verified. Now it is well settled that affidavits which were filed and cross examination has been conducted in a detail and no objection was taken at that time and no permission was granted by the Court to rectify the same, now affidavits cannot said to be defective. So far as encroachment is RSA No.1689 of 2010 (O&M) -4- ***** concerned, it is clear that there is encroachment on the street and defendants have encroached upon the street and construction is new one as DW2 Ashwani Kumar himself admitted that lintel was constructed in the month of October 1999 and suit was filed on

20.10.1999. So local commissioner has recorded wrongly that construction is two/three years old and further the photographs Ex.P3/4 to Ex.P3/12 clearly reveals that construction is new one. As far as maintainability is concerned, the declaration is not sought for and further it is held in V. Ranga Durai & Ors. Vs. S. Jayalakshmi & Anr. 2007(4) CCC 389 (Madras) Supra that plaintiff claiming exclusive rights whereas defendant claiming it to be a common lane, both parties relying upon the documents and suit was simple for permanent injunction and mandatory injunction without having the title declared.” Still aggrieved, the present appeal is filed in which, at the time of notice of motion, learned counsel for the appellant has argued that the suit has been dismissed by the Courts below on the ground of non-compliance of Section 91 of the Code of Civil Procedure, 1908 [for short “CPC']. He also submitted that it is not a case of public nuisance, but a case of enforcement of an individual right, for which no leave of the Court is required in terms of Section 91 of the CPC. In this regard, he had relied upon a decision of this Court in the case of Baldev Singh Chahal Vs. Madan Lal Gulati, (2000-1) P.L.R. 265. On the appearance of the respondents through their counsel, the parties were directed to produce respective photographs to show the extent of construction with regard to the passage. In compliance thereof, the respondents had placed on record photographs through CM No.12035-C of 2010 which was allowed on 14.10.2010. A perusal of the photographs at page 70 of the paper book shows that the disputed passage leads to a room which cannot be held to be a public street. As a matter of fact, there is no thoroughfare and despite the opportunity RSA No.1689 of 2010 (O&M) -5- ***** granted, learned counsel for the appellant did not place on record any photograph to contradict the photographs produced on record by the respondents. In any case, even if the suit is held to be maintainable, the concurrent finding recorded by the Courts below shows that the property in dispute is not a public street as it has been tried to be projected by learned counsel for the appellant before the Trial Court that it is being used for parking vehicles and for urinating purposes. Thus, in view of the finding of fact recorded by the Courts below and in the absence of any question of law much-less substantial, I do not find any merit in the present appeal and as such, the same is hereby dismissed. No costs. December 10, 2010. vinod* (RAKESH KUMAR JAIN) JUDGE