IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.118 of 2001. Judgement reserved on: 12.12.2007 Date of decision: 11.1.2008. Kishore Chand and another ….Appellants Vs. Mehar Chand and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Rajnish K. Lall, Advocate, vice Mr. K.D. Sood, Advocate. For the Respondents : Pt. Om Parkash Sharma, Advocate, for respondents No.1 to 5. Mr. M.L. Chauhan, Addl. A.G. for respondent No.7. Kuldip Singh, Judge. The defendants are in appeal against the judgment, decree dated 22.2.2001 passed by learned Addl. District Judge, (I) Kangra at Dharamshala in Civil Appeal No.III-D/98, decreeing the suit of the respondent No.1-plaintiff. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The facts in brief are that respondent No.1-plaintiff filed a suit for possession as well as for permanent prohibitory injunction regarding land measuring 0-00-95 hects out of land comprised in Khata No.61 min, Khatauni Nos. 128 and 127, Khasra No,.225 (0-56-97 hects) and khasra No.226 (0-01-50) hects, situated in Mohal Bhaterh, Mauza Tangroti, Tehsil and District Kangra by demolition of the structure raised by appellants-defendants on a portion of khasra Nos. 225 and 226. He has also prayed mandatory injunction against the appellants-defendants from blocking public path on the land comprised in Khata No. 143 min, Khatauni No.364 min, Khasra No.227 measuring 0-05-48 hects, Gair Mumkin Rasta, situated in Mohal Bhaterh, Mauza Tangroti, Tehsil and District Kangra. 3. The further case of the respondent No.1-plaintiff is that he along with others is owner of land comprised in Khasra No.225, measuring 0-56-97 hects, land comprised in khasra No.226 is recorded in the ownership of defendant No.5 but in cultivating possession of respondent No.1-plaintiff and defendants No.3, 4 and the remaining suit land comprised in Khasra No.227 measuring 0-05- 48 hects is owned by Govt. of H.P. and is a public path. The land of appellants-defendants is adjoing to the suit land . The appellants in January 1987 started digging foundations on Khasra No.227, public path, for construction of their houses and thereby completely blocked the said path. The Civil Courts were closed, hence respondent No.1- plaintiff filed an application before the Executive Magistrate, …3… Dharamshala under Section 133 Cr.P.C. for restoration of path to its original nature. The appellants inspite of proceedings under Section 133 Cr.P.C. raised construction and uprooted trees from the suit land. 4. The appellants-defendants contested, the suit. They took preliminary objections of cause of action, locus standi, non- compliance of sections 91 and 80 CPC, estoppel, maintainability and limitation. On merits, the possession of respondent No.1-plaintiff was denied on khasra No.226. It has been submitted that the said land is in possession of Puran Chand respondent. It has been denied that the appellants have dug foundations over Khasra No.227, the blocking of the passage has also been denied. The respondent No.1-plaintiff, proforma defendants No.3 and 4 have obliterated the public path on Khasra No.227. The appellants have constructed their houses on khasra No.235/1. The appellant No.1 completed the construction in the first week of January 1987 and appellant No.2 has completed construction upto lintel level. The appellants denied having made encroachment over the suit land. 5. The State has filed separate written statement and has pleaded that the appellants have encroached upon portion of the suit land comprised in khasra No.227/1 which is a Govt. land and proceedings under Section 163 of the H.P. Land Revenue Act is pending against them. The replication to the written statement of appellants-defendants was filed by respondent No.1-plaintiff in which he reiterated the stand taken in the plaint. The learned Sub Judge dismissed the suit on 22.9.1998 against which respondent …4… No.1-plaintiff filed appeal which has been allowed by learned Addl. District Judge on 22.2.2001, hence appellants-defendants No.1 and 2 are in appeal. 6. The appeal has been admitted on following Substantial Questions of Law: 1. Whether the suit of the plaintiff for the reliefs u/s 91 C.P.C. was maintainable without the permission of the Advocate General particularly when the defendants had raised a costly structure on a small portion of land and damages would be an adequate relief? 2. Whether in view of the fact that the plaintiffs had themselves raised construction on the path and have himself diverted the path which diverted path was still being used, the relief of demolition could be granted? 3. Whether the suit of the plaintiff was maintainable in view of the proceedings u/s 163 of H.P. Land Revenue Act and 133 Cr.P.C. having been initiated against the appellants? 4. Whether in the absence of a plea and proof of special damage being suffered by the plaintiffs, the relief of demolition of the costly structure of the defendants could be allowed? 7. The appellants have filed application being CMP No.262 of 2002 under Order 41 Rule 27 CPC, for additional evidence, for proving notice dated 16.12.1993 issued by Assistant Collector Ist Grade to appellants and order dated 17.1.1994 passed by Assistant Collector Ist Grade, Dharamshala. The respondent No.1-plaintiff has filed reply and opposed the application. 8. I have heard Mr. Rajnish K. Lall, appearing on behalf of Mr. K.D. Sood, Advocate for appellants and Pt. Om Parkash Sharma, …5… learned counsel for respondents No.1 to 5 and Mr. M.L. Chauhan, learned Addl. Advocate General for respondent No.7 and gone through the record. The learned counsel for the appellants has submitted that the appellants may be permitted to lead additional evidence to prove notice dated 16.12.1993 of Assistant Collector Ist Grade, Dharamshala and order dated 17.1.1994 also of Assistant Collector Ist Grade, Dharamshala. He has submitted that these documents are necessary to adjudicate the real controversy between the parties. On merits, he has submitted that the suit is not maintainable in view of non-compliance of Section 91 CPC. He has also pressed Section 163 of the H.P. Land Revenue Act and Section 133 Cr.P.C in support of his submission that suit is not maintainable. The respondent No.1-plaintiff has not proved special damage, therefore, he is not entitled to relief of demolition of the costly structure of the appellants. The respondent No.1-plaintiff himself is an encroacher of the public path and for this reason also he is not entitled to relief of mandatory injunction. The learned counsel for respondents No.1 to 5 has opposed the application of the appellants for additional evidence on the ground that no case for additional evidence has been made out by the appellants. The documents sought to be placed on record are dated 16.12.1993 and 17.1.1994 and no explanation has been given, why these documents were not placed on record in the trial Court as well as in the lower Appellate Court. The case of the appellants has also been opposed by learned …6… counsel appearing for the respondents and they have supported the impugned judgment, decree. 9. The application for additional evidence was filed on 21.3.2002. The documents which the appellants intend to produce by way of additional evidence are dated 16.12.1993 and 17.1.1994. It is not the case of the appellants that they were not aware of these documents, rather the appellants can not take this stand inasmuch as notice dated 16.12.1993 is addressed to both the appellants and presence of respondent No.1-plaintiff is recorded in the order dated 17.1.1994. The additional evidence can be allowed within the parameters of Order 41 Rule 27 CPC. The appellants have failed to make out any case for leading additional evidence, hence, CMP No.262 of 2002 is dismissed. Substantial Questions of Law 1 to 4 10. The substantial questions of law 1 to 4 emerge from the basic plea of the appellants that the suit of the respondent No.1- plaintiff is not maintainable, therefore, substantial questions of law No.1 to 4 are interconnected and for that reason all of them are being disposed of collectively. Section 91 CPC authorizes Advocate General or with the leave of the Court, two or more persons to file a suit in case of public nuisance or other wrongful act or likely to affect the public. However sub-section (2) of section 91 does not limit or otherwise affect any right of suit which may exist independently of its provisions. The respondent No.1-plaintiff has filed the suit in order to protect his own right on the public path and therefore Section 91 CPC …7… is no bar to a suit of the nature filed by respondent No.1-plaintiff. As per respondent No.1-plaintiff he is using the path since time immemorial. The suit is not only for public path over which respondent No.1-plaintiff is claiming his right of user but, the suit is also with respect to other property over which respondent No.1- plaintiff is claiming his right. Therefore, Section 91 CPC is no bar to the suit. No doubt under Section 163 of the H.P. Land Revenue Act proceedings were initiated against the appellants for encroaching part of khasra No.227 owned by the Govt., however, respondent No.1-plaintiff filed the suit in his own right. He is not a party in the proceeding under Section 163 of the H.P. Land Revenue Act. Therefore, appellants cannot take shelter under Section 163 for opposing the suit of the respondent No.1-plaintiff. The respondent No.1-plaintiff has not prayed any relief regarding the proceedings initiated by the Govt. against appellants under Section 163 of the H.P. Land Revenue Act. The proceedings under Section 133 Cr.P.C. are of summary nature. As per the case of the respondent No.1-plaintiff, the appellants continued to raise construction on the public path even after the initiation of the proceedings under Section 133 Cr.P.C. against them. The Magistrate under sub section (2) of section 137 Cr.P.C. shall stay the proceedings in case of denial of public use. The appellants in their written statement have not raised the bar of section 133 Cr.P.C. for filing the suit; rather their plea is that proceedings before Executive Magistrate were false and frivolous. In other words they denied the existence of public path. The Civil Court …8… has every jurisdiction to adjudicate the dispute of the nature raised by respondent No.1-plaintiff by filing the suit. Hence, the suit is not barred under Section 133 Cr.P.C. 11. It has been submitted that respondent No.1-plaintiff himself is an encroacher and therefore, he is not entitled to decree of demolition of structure raised by appellants. The learned Addl. District Judge after noticing Ex.PA report of the Local Commissioner has held that very little portion of the public path has come in the land of respondent No.1 but, admittedly respondent No.1 has not raised any structure on such portion. The respondent No.1-plaintiff has taken a consistent stand that he has no objection, if that part of the public path which has merged in his land is restored to its original nature. Thus, the bonafide of respondent No.1-plaintiff is clear and it cannot be said that he has encroached upon any portion of the public path. In any case, even if, respondent No.1-plaintiff has encroached a part of public path that will not give licence to the appellants to encroach and raise structures on the public path. The appellants shall have to explain their right to raise the structures on public path. They cannot be permitted to encroach the public path on the ground that since respondent No.1-plaintiff has encroached the public path, therefore, they have right to encroach public path and the structures raised by them over the public path should not be removed. Thus, this contention of the learned counsel for the appellants is rejected. 12. The last contention of the learned counsel for the appellants is that the respondent No.1-plaintiff has not proved special …9… damage and therefore, in the suit of respondent No.1, he is not entitled to the relief of demolition of costly structure raised by the appellants. In Sri Ram Singh and others vs. Smt. Pattti abd others AIR 1968 Allahabad, 18, it has been held as under : “It is well settled that a village pathway is not a public highway and that no special damage need be proved in a suit for removal of an obstruction to the former. It is not disputed that the passage has been substantially obstructed by the unauthorized constructions recently made by the defendants. They clearly amounted to infringement of the rights which the plaintiffs as residents of the village essentially enjoyed and those infringements caused them special damage”. In Bani Singh vs. Rattan Singh (1986) PLJ 577, it has been held that village pathway cannot be said to be public highway and it was not necessary for the plaintiff to prove any special damage caused to him. 13. In the present case the respondent No.1-plaintiff has proved substantial injury and special damage on the ground that he is using the said path since time immemorial and the structures raised by the appellants on the public path have blocked the user of public path by the respondent No.1-plaintiff. The learned Addl. District Judge has considered this aspect and no fault can be found with the findings recorded by the learned Addl. District Judge on this point. The lower appellate Court has appreciated the material on record properly. The appellants have failed to …10… make out any case for interference. The substantial questions of law No.1 to 4 are accordingly decided against the appellants. 14. No other point was urged. 15. The result of the above discussion, appeal fails and dismissed with no order as to costs. January 11, 2008 ( Kuldip Singh ) (sks) Judge.