R.S.A. No. 634 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 634 of 1995 Date of Decision: 11.08.2009 1. Shanti Devi, widow; 2. Subhash, son; 3. Asha, daughter; all LRs of Goverdhan Dass son of Sh. Chhottu Ram, Shop No. 28, Jawahar Market, Rajpura Township. ... Appellants Versus 1. Yashoda Bai widow of Devi Dayal, r/o H. No. 1879, Rajpura Town. 2. Municipality, Rajpura through its Administrator; 3. Municipal Committee, Rajpura through its Executive Officer. 4. Baldev Raj son of Chaman Lal, r/o H. No. 1108, Rajpura Town, Distt. Patiala. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Jain, Advocate, for the appellants. Mr. Gurnam Singh, Advocate, and Mr. V.P. Singh, Advocate, for respondent No. 1. Mr. Arun Palli, Senior Advocate, with Mr. Kanwal Goyal, Advocate, for respondents No. 2 and 3. Mr. Ishwar Lal, Advocate, for Mr. Baldev Raj, Advocate, for respondent No. 4. R.S.A. No. 634 of 1995 2 SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 18.05.92, rendered by the Court of Sub Judge 1st Class, Rajpura, vide which, it decreed the suit of the plaintiff/respondent No. 1, and the judgement and decree dated 09.02.95, rendered by the Court of Additional District Judge, Patiala, vide which, it dismissed the appeal. 2. The plaintiff/respondent was the owner in possession of shop No. in Jawahar Market, Township Rajpura. A portion of the shop was under the tenancy of Goverdhan Dass, defendant no.1/appellant (now deceased) represented by his legal representatives. The husband of the plaintiff through her had been using the road towards southern side of the shop, in question, since the date of its purchase. There had been a door of the plaintiff, in the shop, since 1958, which opened towards the southern side, allowing the light and air to pass through the same. It was stated that a valuable right of easement had accrued to the plaintiff, as she was using the door situated towards the southern side of the shop, since long. It was further stated that defendant No. 1, placed a wooden kiosk (khokha), shown by words ABCD near the door of the shop, in dispute, in connivance with defendants No. 2 and 3. It was further stated that, in this way, the defendants tried to interfere in the easementary rights, aforesaid, of the plaintiff. The defendants, were many a time asked, not to interfere into the peaceful enjoyment of the easementary rights of the plaintiff, and remove the kiosk (khokha) but to no avail. On his final refusal to accede to her repeated requests, left with no other alternative, a suit for mandatory injunction, was filed. R.S.A. No. 634 of 1995 3 3. Defendant No. 1, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was stated that Devi Dayal, husband of the plaintiff, was the owner of the shop, in dispute, and he has died leaving him surviving her, four sons, and three daughters, and as such, she (plaintiff), was not the sole owner of the shop, in question. It was admitted that a portion of the shop, in dispute, was in possession of defendant No. 1, as a tenant. It was further stated that the title of the shop did not legally pass on to the plaintiff on the basis of collusive decree. It was further stated that the plaintiff or her husband had no concern with the site in dispute. It was further stated that the site was allotted to the defendant, by the Notified Area Committee, Rajpura, and it had been receiving the rent, in respect thereof, from him, prior to 1966. It was further stated that the Notified Area Committee, Rajpura, was later on amalgamated into Municipal Committee, Rajpura, which was also receiving the rent from him in respect of the site, in dispute, which was allotted to him. It was further stated that the possession of the defendant over the site in dispute, whereon the wooden kiosk (khokha) had been installed, was for more than 27 years and the question of having any easementary right by the plaintiff over the same did not at all arise. It was denied that any door towards the southern side of the shop existed at the spot. 4. Defendants No. 2 and 3, also filed a separate written statement, stating therein that the plaintiff, had given the back portion of her shop to defendant No. 1, on rent. It was further stated that defendant No. 1, got allotted open space measuring 30' x 8' vide resolution No. 876, dated 04.03.67 and since then he installed a wooden kiosk (khoka), measuring 10' x 8 '. It was further stated that the site is far away from the shop of the R.S.A. No. 634 of 1995 4 plaintiff and there existed 60' wide road towards the western side. It was further stated that the Municipal Committee, is competent to permit occupation of Public Land, under Section 173 of the Punjab Municipal Act. It was further stated that the earlier suit filed by the plaintiff was dismissed on 8-x-88. The remaining averments, were denied, being wrong. Respondent No.4 purchased the kiosk from Govardhan Dass, and, as such, he was impleaded as a party in the appeal. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is the owner of shop No. 28, situated in Jawahar Market, Rajpura? OPP (ii) Whether the plaintiff has acquired a right of easement regarding the light and air to the shop in dispute regarding door situated on the southern side? OPP (iii) Whether the site over the kotha has been raised by the defendants was allotted to him by the Notified Area Committee vide resolution No. 2314 dated 01.10.66? OPD (iv) Whether the defendants raised khokha in the above said site about 27 years back, if so to what effect? OPD (v) Whether the plaintiff is precluded from filing the present suit as a result of the withdrawal of the previous suit? OPD (vi) Whether the suit is within time? OPP (vii) Whether the suit is bad for non-joinder of necessary parties? OPD (viii) Relief. 6. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. R.S.A. No. 634 of 1995 5 7. Feeling aggrieved, an appeal was preferred, by defendant No. 1/appellant, which was dismissed, by the Court of Additional District Judge, Patiala, vide judgement and decree dated 09.02.95. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by defendant No. 1/appellant. 9. During the pendency of appeal, Goverdhan Dass, defendant No. 1/appellant, died, and his legal representatives were brought on record. 10. I have heard the Counsel for the parties, and have gone through the evidence, on record, carefully. 11. The following substantial questions of law arise in this appeal for the determination of this Court:- Whether the Courts below recorded perverse findings on account of misreading and misappreciation of evidence that the kiosk (khokha) was placed by Goverdhan Dass (since demised), represented by his legal representatives, at a place, forming part and parcel of the public street/Road and, as such, was an encroachment and liable to be removed? 12. The Counsel for the appellants and respondent No.4, submitted that the Courts below misread and misappreciated the evidence, in coming to the conclusion, that the wooden kiosk (khokha) was installed at a place,which was a part and parcel of the public street/Road and, as such, constituted encroachment and was liable to be removed. They further submitted that from the evidence, on record, including the site plan, it was established that that the kiosk (khokha), had been installed at a place far away from the public street, and, as such, did not constitute any encroachment. He further submitted that the judgements and decrees of the Courts below, thus, being illegal, were liable to be set aside. 13. On the other hand, the Counsel for respondent No. 1, R.S.A. No. 634 of 1995 6 submitted that the Courts below, recorded the concurrent finding, that the kiosk (khokha), had been installed at a place, which formed part of the public street/Road and as such, constituted an encroachment and was liable to be removed. He further submitted that the Courts below, were, thus, right in granting the decree for mandatory injunction. He further submitted that this Court, in the Regular Second Appeal, cannot interfere with the concurrent findings of fact, recorded by the Courts below. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 14. The Counsel for respondents No.2 to 3, however, submitted that as per their record defendant no.1 (since deceased) got allotted open space measuring 30'x8' and installed wooden kiosk thereon. He further submitted that the kiosk is installed at a place in between the Road and shop in dispute. He further submitted that the place at which the kiosk is installed is far away from the Road. 15. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous as the legislative intention was very clear that the R.S.A. No. 634 of 1995 7 legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The question that fell for the determination, before the Courts below, was, as to whether, the kiosk (khokha) installed by Goverdhan Dass (since deceased), now represented by his legal representatives, at a place, which formed part of the public street Road and, as such, constituted encroachment and was liable to be removed. From P2, site plan produced and proved, on record, by the plaintiff, it is evident that the road is on the southern side of the shop, in dispute. In between the shop and the road, there is open space. On this open space, Goverdhan Dass (since deceased) had installed his kiosk (khokha). This open space is adjacent to the road. In other words, the permanent kiosk (khokha), as admitted by Goverdhan Dass (since deceased), in his statement, is installed at a place in between the shop in dispute and the road. Section 3(13)(a) of the Punjab Municipal Act, 1911, defines as under:- “Street”, shall mean any road, foot-way, square, court, alley, or passage, accessible, whether permanently or temporarily to the public, and whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings about thereon and if it is used by any person as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid; R.S.A. No. 634 of 1995 8 and shall include also the drains or gutters therein, or on either side, and the land, whether covered or not by any pavement, verandah or other erection, up to the boundary of any abutting property not accessible to the public. (b) “Public street” shall mean any street- (i) heretofore levelled, paved metalled, channeled, sewered, or repaired out of municipal or other public funds, unless, before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor; or (ii) which, under the provisions of Section 171, as declared by the committee to be, or under any other provision of this Act becomes, a public street.” 15. From the definition of street, extracted above, it becomes abundantly clear that the public street shall include, in addition to roads, foot-way, square etc., which answer to the general idea of street, vacant place which may not be street in the normal sense. Public Street/Road will include gutters, drains, open space etc. upto and abutting the private property. In the instant case, therefore, the open space, shown in between the shop and the road, in the site plan, on which, the kiosk (khokha), has been permanently installed by Goverdhan Dass (since deceased), answered to the definition of public street, contained in Section 3(13)(a) of the Punjab Municipal Act, 1911. Such open spaces are meant for extension of the roads and for proper maintenance and usage of the same. In The Municipal Board Manglaur Vs. Mahadeoji Maharaj, AIR 1965 (SC), 1147, decision rendered by a three Judge Bench of the Apex Court, the principle of law, laid down, was that the Municipality could not put up structures on the vacant site forming part of the Public Street/Road which are not necessary R.S.A. No. 634 of 1995 9 for the maintenance or user thereof as a public highway. In the aforesaid case, there was a metalled road running through the plot of land belonging to the plaintiff and on either side of the same there was open space and on either side of the open space there was municipal drain. The public had been using the same since decades and the Municipality had been maintaining the road and the drain. The Municipality was seeking to erect a structure, on the vacant site, lying between the drain and the road, wherein, it intended to instal a statue of Mahatma Gandhi and also to put up two rooms on either side for piyo and library. The plaintiff filed a suit for permanent injunction, which was decreed and it was held that the Municipal Committee, could not put up structures. In Firm Pyarelal Satpal and others Vs. Santlal and others, AIR 1972, Rajasthan, 103, the principle of law, laid down, was to the effect that all the propety of the nature specified in Section 51 of the Bikaner Municipal Act, vests in the Municipality, and under it, on the specific condition, that it shall be held and applied by it for the purposes of the Act. It is not open to the Municipal Committee, to convert a part of the public highway into a bazar. It was further held that when the Act does not empower the Municipality to let out portions of public highway, for putting up stalls, for carrying on business, no bye-laws could be framed under Section 129 authorizing the Municipality to do so. Bharat Bhushan, attorney of the plaintiff, when appeared as, PW3, stated in clear-cut terms, that the berms on the sides of the road were for the use of the public. He also deposed with regard to the encroachment of the public street by Goverdhan Dass (since deceased). Atam Parkash, Junior Assistant of the Municipal Committee, Rajpura, deposed with regard to the existence of the permanent structure in the shape of kiosk (khokha) of Goverdhan Dass, and R.S.A. No. 634 of 1995 10 payment of Teh bazari by him to the Municipal Committee. Goverdhan Dass (since deceased), DW2, admitted the existence of permanent structure in the shape of kiosk (khokha), on the open space in between the road and the shop, in his possession. This structure, was, thus, an encroachment on the road/public street. Any person from the public, who was the user of the road, could file a suit for mandatory injunction, for removal of such encroachment. If the Municipal Committee, did not perform its duty, in accordance with the provisions of Municipal Act, 1911, then the Court, at the instance of a person using the road, could certainly grant mandatory injunction. Under these circumstances, in my opinion, the concurrent findings of fact, recorded by the Courts below, are based on the correct reading and due appreciation of evidence, as also the provisions of law, and do not suffer from any illegality or perversity, and warrant no interference. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial question of law, depicted above, is answered against the appellants. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed, with costs. 11.08.2009 (SHAM SUNDER) Amodh JUDGE