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2014 DIGILAW 1585 (PNJ)

Rakesh Kumar v. Vasdev Mehta

2014-11-19

RAJIVE BHALLA

body2014
Rajive Bhalla, J. 1. The appellant challenges judgment and decree dated 28.7.1988 passed by the then Additional District Judge, Patiala, whereby judgment and decree dated 27.2.1987 passed by the trial court was set aside and the suit filed by respondent No. 1 was decreed. Counsel for the defendant-appellant submits that the appellant was allotted a khokha by the Municipal Committee on payment of teh bazari as the land, in dispute, vests in the Municipal committee. Respondent No. 1, therefore, had no right to file a suit for removal of the khokha. The trial court rightly dismissed the suit, but the first appellate court has, without considering the rights of the Municipal Committee, to give land on teh bazari, set aside the order passed by the trial court, decreed the suit and directed the appellant to demolish the khokha. Counsel for the appellant also submits that in the absence of any right, title or interest in the land in dispute, the mere fact that respondent No. 1 was owner or in possession of shop No. 60, which adjoins the khokha, is not sufficient to confer a right upon respondent No. 1 to maintain a suit for mandatory injunction. Counsel for the appellant states that the following substantial question of law arises for adjudication:- Whether the first appellate court was empowered to reverse judgment and decree dated 27.2.1987 passed by the trial court on general principles that roads and paths should not be given on teh bazari? 2. No one is present on behalf of respondent No. 1. 3. Vasudev Mehta, plaintiff-respondent No. 1, filed a suit for mandatory injunction, to direct defendant Nos. 1 and 2 Rakesh Kumar @ Krishan Kumar and Jagdish Chand, to remove permanent structure shown as 'ABCD' in the site plan appended with the plaint by pleading that a permanent structure has been raised on part of a path, thereby interfering with easementary rights of access, air and light available to the plaintiff. 4. The appellant-defendant put in appearance and filed a written statement controverting averments in the plaint and pleaded that as he has been allotted land on teh bazari, he has constructed a kacha khokha (temporary structure), which cannot be demolished by issuance of a mandatory injunction. 5. The Municipal Committee-respondent No. 3 filed a written statement supporting averments in the written statement. 6. 5. The Municipal Committee-respondent No. 3 filed a written statement supporting averments in the written statement. 6. After considering the pleadings, the trial court framed the following issues:- "1. Whether Lila Ram was owner of shop in dispute? OPP 2. Whether Lila Ram put the plaintiff in physical possession of the shop in dispute? If so, its effect? OPP 3. Whether the suit is barred by the principles of res judicata? OPD 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Relief." 7. The trial court dismissed the suit by holding that as the land has been licensed to the appellant on teh bazari under Section 173 of the Punjab Municipal Act, 1911 (hereinafter referred to as "the Act"), respondent No. 1 has no right or cause to seek removal of the khokha. Aggrieved by the aforesaid judgment and decree, respondent No. 1 filed an appeal, which was allowed by setting aside judgment and decree passed by the trial court, directing the appellant to remove the structure. 8. I have heard counsel for the appellant and appraised the record. 9. A perusal of the pleadings, the record as well as the finding recorded by the first appellate court reveal that land given on teh bazari, is a vacant site lying between a drain and a road and abuts the shop owned by respondent No. 1. Respondent No. 1 is owner of shop No. 60. The structure raised by the appellant abuts this shop. The site given on teh bazari, is part of a public street/foot-path for use as part of the road/path and, therefore, could not have been given out on teh bazari. A Municipal Committee is constituted to look after and manage public property and where public property is in nature of a path, road or a foot-path, it can not lease or license such property for setting up a shop, whether temporary or otherwise. The area licensed to the appellant, was part of a public path/space and abuts the shop owned by respondent No. 1. The Municipal Committee, though empowered under Section 173 of the Act, to give its land on teh bazari, should have been conscious of its obligation not to license public property so as to impede the rights of other adjoining shopkeepers and the free movement of residents of the area. The question of law is answered against the appellant. The Municipal Committee, though empowered under Section 173 of the Act, to give its land on teh bazari, should have been conscious of its obligation not to license public property so as to impede the rights of other adjoining shopkeepers and the free movement of residents of the area. The question of law is answered against the appellant. Consequently, finding no merit, the appeal is dismissed.