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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1042 OF 2011
[Arising out of SLP (C) No. 35813 of 2009]
HARI RAM ....Appellant
Versus
JYOTI
PRASAD &
ANR.
...
Respondents
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Leave granted.
2. By 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
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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 of
2007. 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).
3. In
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.
4. The suit was filed by the respondent herein contending inter
alia that all the six persons including respondent No. 1 have
their common interest in the disputed street alongwith co-
inhabitants of the same area. It was stated that the residential
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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. 2
encroached 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.'].
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5. In the plaint it was further stated that earlier the
respondent No. 1 as complainant filed a complaint under Section
133 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.
6. When 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. 160
of 2003.
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7. Defendant Nos. 1 and the present appellant as defendant No. 2
filed 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.
8. To substantiate his case, the plaintiff/respondent No. 1
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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
of
illegal
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.
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9. Being 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 dated
25.7.2008 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. 2698 of
2008.
10. By 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.
11. Being 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 the parties.
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12. Mr. 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
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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 itself.
13. The
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.
14. In the light of the aforesaid submissions of the counsel
appearing for the parties, we also perused the records very
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carefully. We would first deal with the plea of limitation as
raised before us by the appellant.
15. The 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.
16. On
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
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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.
17. The 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
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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.
18. Any 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 injury.
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19. At 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.
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20. The 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 Rule
8 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 of
10 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.
21. In 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 SC
396. In paragraph 13 of the said judgment, this Court has held
that suit could be instituted by representative of a particular
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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.
22. In 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 therefrom 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.
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23. In 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.
24. According 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
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admitting that he had also encroached upon some area of the 10
feet 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.
25.
Besides,
in all 8
witnesses
were
examined
by 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
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village and towards eastern side of the plot of the
defendant/appellant he had left a street of 10 feet width.
26. As against the aforesaid evidence adduced on behalf of the
plaintiff/respondent No. 1, the appellant examined himself as DW-1
wherein 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.
27. On 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
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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.
28. Ext. PW-7A filed by the plaintiff/respondent is a site plan
which proves and establishes that there is a public street of 10
feet 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
aforesaid
evidence
go
unrebutted. 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.
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29. We, 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.
30. In
terms of
the
aforesaid
observations and directions, the appeal is dismissed.
........................J
[Dr. Mukundakam Sharma]
........................J
[Anil R. Dave]
New Delhi
January 27, 2011
