R.S.A.NO.2698 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.NO.2698 of 2008 Date of decision:31.07.2009 Hari Ram ......Appellant Versus Jyoti Parsad and another .......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. C.B.Goel, Advocate for the appellant. Mr. Jangjit Singh Dahiya, Advocate for respondents. Rajive Bhalla, J. The appellant challenges the judgments and decrees dated 6.12.2007 and 25.07.2008, passed by the Civil judge (Senior division) Panipat and the Additional District Judge, Panipat, decreeing the suit filed by respondent no. 1 and dismissing the appeal filed by the appellant. The plaintiff-respondent no. 1 filed a suit, under Order 1 Rule 8 praying that as the appellant had encroached upon a 10 feet wide public street, a decree be passed directing him to remove the unauthorized construction. The appellant and R.S.A.NO.2698 of 2008 2 respondent no. 2 filed a joint written statement alleging that after purchase of a plot measuring 98 sq. yards from Bal Kishan Das, vide registered sale deed dated 26.02.1981, they had constructed their house and as the suit property is not a public street, the suit be dismissed. The trial court framed the following issues:- “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, District 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.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court held that as the appellant had encroached upon a 10 feet wide public street, he was required to remove the encroachment. Consequently, a decree was passed , directing the appellant to remove the R.S.A.NO.2698 of 2008 3 unauthorized construction within one month failing which respondent no. 1 would be entitled to get the encroachment removed at the expense of the appellant. During the pendency of the suit, respondent no. 2 removed his encroachment and therefore, the suit was rendered infructuous qua him. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. The Additional District Judge, Panipat, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the expression “public street” is defined under Section 2 (21) of the Haryana Municipal Act to mean any street which is levelled, paved etc., by the Municipal Committee or has been declared as such under Section 180 of the Act. In the absence of any evidence that the suit property is a “public street” the courts below have committed an error of law in holding that the appellant has encroached upon a street. It is further argued that the appellant purchased the suit land in the year 1981 and constructed his house. Respondent No.1 has not produced any evidence that the construction lies in a street much less a public street. It is further submitted that as the procedure prescribed by Order 1 Rule 8 of the Code of Civil Procedure was not adhered to, the suit should have been dismissed. It is also submitted that the courts below were remiss in their duty and should have dismissed the suit as barred by time as the construction raised in the year 1985 is being challenged by filing a suit in the year 2003. The last argument is R.S.A.NO.2698 of 2008 4 that the site plan PW-7/A has not been proved and should therefore, have been rejected by the courts below. Counsel for the respondents, on the other hand, submits that the findings recorded by the courts below are findings of fact that do not raise any substantial question of law, much less the questions framed by the appellant. It is submitted that the appellant has encroached upon a public street, causing inconvenience to the inhabitants of the area. The existence of the 10 feet wide street has been established by the deposition of the appellant’s vendor Bal Kishan Das who has deposed as PW-4, that a 10 feet wide street exists towards the eastern and western side of the plot sold to the appellant. It is submitted that a path or a street is public not merely because it vests in a Municipal Committee but because it is used by the general public. It is further argued that the appellant has intentionally withheld his sale deed and therefore, an adverse inference arises that if he had produced the sale deed, the existence of the public street would have been established. It is also submitted that as encroachment of a street is a continuing wrong, the suit cannot be said to be barred by time. Counsel for the appellant has framed the following substantial questions of law:- “1. Whether it was enjoined on the trial court to have framed issue of limitation in view of plea raised by the R.S.A.NO.2698 of 2008 5 defendant/appellant in his written statement that the suit was not within limitation and in view of the non-framing of the issue, the judgments of the courts below are unsustainable and deserve to be dismissed? 2. Whether a duty is casted on the Court to dismiss a suit or Appellate Court as the case may, when the same is barred by limitation in view of Section 3(1) of the Limitation Act, even if limitation had not been set up as a defence?/ 3. Whether a suit for mandatory injunction regarding a construction raised in 1981-82 could be filed by the plaintiff in 2003 when he himself had purchased plots in 1984 and 1986 much after the construction raised by the defendant- appellant? 4. Whether the findings of the Courts below can legally be sustained, which are based on the site plan Ex.PW7/A, which has not been proved. The said site plan had been prepared by one Shri N.K.Jain, Draftsman (Civil) but not produced and instead one Sh. Ravi Kumar Jain has been R.S.A.NO.2698 of 2008 6 produced? 5. Whether in the facts and circumstances of the present case, judgments and decrees of the Courts below are legally sustainable?” I have heard counsel for the parties, perused the impugned judgment and considered the questions of law framed by counsel for the appellant but express my inability to hold that the findings recorded by the courts below suffer from any error that raises a substantial question of law much less the questions of law framed by counsel for the appellant. The courts below have returned concurrent findings that the appellant has encroached upon a public street. By way of the first two questions of law, the appellant asserts that Section 3 of the Limitation Act, casts a duty upon a court to dismiss a suit that is barred by time but despite pleading to that effect, in his written statement, the trial court, did not frame any such issue and the appellate court ignored this legal plea. It is true that if a suit is barred by time, Section 3 of the Limitation Act, places an obligation, upon a Court, to dismiss such a suit, irrespective of such a plea being raised or an issue having been framed as the question of limitation relates to the jurisdiction of a Court. In the instant case, the suit cannot be said to be barred by time as an encroachment of a public street is a continuing wrong. The submission that the suit filed in the year 2003, for R.S.A.NO.2698 of 2008 7 removal of the construction raised by the appellant in the year 1985 is barred by time therefore, cannot be accepted. It would also be necessary to mention here that litigation between parties remained pending for a considerable period before the SDO, Panipat, the appellate authority and before the High Court upto 5.09.2002. It was only, after the High Court directed that the matter in dispute would have to be resolved by leading evidence before a civil court that respondent No.1 filed the instant suit. The third question is that as respondent no. 1 purchased a plot in 1986 after the appellant had already raised construction, he could not file the instant suit by alleging that the cause of action arose in 1985. The above assertion is factually incorrect. Respondent No.1 purchased his plot on 6.08.1985, wrongly recorded by the courts below, as on 20.09.1986. The fourth question of law raises an argument that as the site plan Ex.PW-7/A has not been proved by Shri N.K.Jain, the person who prepared it, it should have been rejected. It would be necessary to mention here that no such plea was raised before the trial court or before the first appellate court. Even otherwise, the site plan reflects the factual position as per the evidence on record and could therefore, not have been rejected by the courts below. It is therefore, apparent that the findings recorded by the courts below do not suffer from any error, whether of fact of of law. Before parting with the judgment, it would be necessary to mention here that the best evidence to establish the appellants submissions was his sale deed which has been R.S.A.NO.2698 of 2008 8 withheld. The sale deed assumes significance, in view of the deposition of the appellant’s vendor, who deposed as to the existence of the street on the eastern and western side of the plot purchased by the appellant. In view of what has been stated hereinabove, as no substantial question of law arises for consideration, the appeal is dismissed. [RAJIVE BHALLA] JUDGE 31st July, 2009 SKaushik