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Rajasthan High Court · body

2019 DIGILAW 2825 (RAJ)

Dayakishan v. Municipal Board, Bhadra

2019-11-11

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has approached this court by way of the instant second appeal for assailing the judgment and decree dated 23.07.2018 passed by the Additional District Judge, Bhadra in Civil Regular Appeal No.7/2015, whereby, the appellate court affirmed the judgment and decree dated 21.11.2015 passed by the Civil Judge, Bhadra in Civil Original Case No.107/2013 (41/2003). 2. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. The appellant and co-plaintiff respondents Nos.2, 3 and 4 (who have not challenged the appellate court's judgment) filed a suit for permanent injunction in the court below stating therein that 14 shops were constructed by Mahila Bal Kalyan Kendra in Ward No.15 near Murti Chowk of Kasba Bhadra and the plaintiffs, namely, Pawan Kumar, Rajendra Khadriya, Govind and Dayakishan, were given one shop each on rent. They were regularly paying rent to Mahila Bal Kalyan Kendra. The patta of the land was issued by the Nagar Palika, Bhadra to Mahila Bal Kalyan Kendra in the year 1973. To the north of the shops, a chunk of land was set apart by the Nagar Palika Bhadra in the year 1957 for public utility and was inaugurated by the then Chief Minister of Rajasthan Mr. Mohan Lal Sukhadiya. Some time later, a school for providing free education to the children was constructed on the western part of this land, which was known by the name Goliya School. The school went into disuse and the building deteriorated by wear and tear. The plaintiffs claimed that the eastern part of the land allotted to Mahila Bal Kalyan Kendra was being used by them and other residents of Bhadra as children's playground, for holding marriages and Ramleelas etc. This public place was also located towards the north of the shops of the plaintiffs and they had opened channels for drainage of rain water etc. towards this public land. Windows and ventilators etc. had also been opened towards the north side so that the shopkeepers could take the benefit of fresh air and sunlight etc. Pleading thus, the plaintiffs claimed that they had easementary right over this public land located to the north of their shops which were all south facing. towards this public land. Windows and ventilators etc. had also been opened towards the north side so that the shopkeepers could take the benefit of fresh air and sunlight etc. Pleading thus, the plaintiffs claimed that they had easementary right over this public land located to the north of their shops which were all south facing. They alleged that the Executive Officer and Chairperson of the Municipality developed a malafide motive and published auction notices in Dainik Bhaskar newspaper on 11.08.2003, 13.08.2003 and 14.08.2003 for the construction of 49 shops on this land of public utility, on which the plaintiffs had easementary rights. They filed the suit for restraining the respondents from selling the land so as to raise the shops in question. 3. A written statement was filed by the Municipality, Bhadra denying the averments made in the plaint. A specific assertion was made in the written statement that the plaintiffs had encroached upon and had transgressed on 15 feet of public land comprising the main road. A 15 feet wide strip of land was lying vacant behind the shops. The land located to the north of the shops in question was not a land of public use, but was the land owned by the Municipality. The school had been shut down prior to 1975 itself and the State Government had transferred the land to the Municipality in the year 1975. The Municipality was in possession thereof and a boundary wall had been constructed thereupon. The land was never set apart for public use and on the contrary, the people were misusing the same by throwing garbage thereupon. The shopkeepers had illegally constructed Jharokhas and took out the rain water drains towards the north of their shops and their demand of easementary rights was not tenable on the land belonging to the Municipality. The land in question was a Nazool property of Municipality, which was being auctioned in a legal manner after taking permission from the State Government, Town Planner and the other concerned departments. 4. The trial court proceeded to formulate the following issues for determination :- . 5. In view of the prayer made by the plaintiffs, the principal issue for determination was the issue No.1. 4. The trial court proceeded to formulate the following issues for determination :- . 5. In view of the prayer made by the plaintiffs, the principal issue for determination was the issue No.1. The trial court deliberated upon the evidence of the parties and held that the land in question was not of public use and was rather the land vested in and owned by the Municipality. Issue No.1 was decided in favour of the defendant Municipality. 6. The issues No.2 and 4 regarding the right of the Municipality to set up shops on the land in question were also decided in favour of the Municipality in light of the fact that the issue No.1, on which this issue was dependent, had been decided in favour of the Municipality. 7. The issue No.3 regarding the closure of the rain water drains and the ventilators etc. of the shops in question rented out to the plaintiffs was elaborated upon and the trial court held that the plaintiffs being the tenants of Mahila Bal Kalyan Kendra could only ask for the easementary rights from the Kendra and not from the Municipality. The trial court also held that as per the report of the Commissioner prepared and presented on the direction of the court, the plaintiffs had encroached upon the road and had not approached the court with clean hands. After discussing the entire material and evidence on record, this issue was also decided against the plaintiffs and in favour of the defendant. 8. Only two of the four plaintiffs, filed a first appeal against the impugned judgment. The appellate court discussed the contentions of the parties at para No.11 of its judgment and held that the land in question was exclusively owned by the Municipality and it had an absolute right to use the same as per its requirement. With these conclusions, the appeal was rejected holding that none of the issues could be decided in favour of the plaintiff-appellants. 9. The pertinent objection of Mr. Moti Singh, learned counsel for the appellant was that the first appellate court was required to deal with the finding recorded by the trial court on each issue after deliberating the submissions of the parties, but no such discussion was made by the appellate court. 9. The pertinent objection of Mr. Moti Singh, learned counsel for the appellant was that the first appellate court was required to deal with the finding recorded by the trial court on each issue after deliberating the submissions of the parties, but no such discussion was made by the appellate court. On this sole ground, he contended that the judgment rendered by the appellate court is bad in the eye of law and the matter should be remanded to the appellate court for fresh decision of the appeal. 10. I have given my thoughtful consideration to the submissions advanced at bar and perused the material available on record. It is indeed true that the appellate court's judgment leaves much to be desired because the individual issues were not deliberated in the correct perspective. 11. However, I have minutely examined the entire record and have gone through the judgments rendered by the trial court and the appellate court and the evidence led at the trial as well as the findings recorded by the trial court on each issue. The claim of the appellant was founded on the aspersion that the land to the north of the shops rented to the plaintiffs was set apart for public use and as such, the Municipality had no right to sell the same for commercial purposes because such an action amounted to interference in their easementary rights. 12. Mr. Moti Singh, Advocate, while arguing the matter before this court pertinently asserted that this aspect of the matter was admitted and was not disputed by the defendant. Having examined the averments made in the written statement filed by the Municipality, I am of the firm opinion that the counsel representing the appellant was ill advised and unprepared while advancing this contention during the course of arguments before this court. There is a pertinent denial of the averments made in the suit that the land had been set apart for public purposes in the para Nos.3 and 4 of the written statement filed by the Municipality, which took a specific plea in the written statement that the land in question was owned by it and had never been set apart for public purposes. Thus, the contention of the learned counsel for the appellant in this regard is totally frivolous and untenable. 13. Thus, the contention of the learned counsel for the appellant in this regard is totally frivolous and untenable. 13. The finding of facts recorded by the trial court in the impugned judgment that the appellant and his co-plaintiffs had encroached upon the public road to the extent of 15 feet is founded on the Commissioner's report prepared on the trial court's direction and the supporting documents. The appellant did not lead any evidence to dispute this important piece of evidence or to question the findings of the Commissioner's report or to lead any evidence in rebuttal thereof. Even no prayer was made to summon the Commissioner for cross examination in reference to the findings recorded in the inspection report, which indicate that the main road is located to the south of the shops, whereas, the land in question is located towards the north of these shops. The shopkeepers have transgressed and encroached on 15 feet of public land in front of their shops and have made encroachments on the road whereas 15 feet land wsa lying vacant behind the shops. Thus clearly, the claim of the plaintiffs in the suit filed before the trial court for permanent injunction that their easementary rights would be infringed if the land in question is permitted to be sold for construction of shops, is totally fallacious as a strip of land ad measuring almost 15 feet is lying vacant behind the rented shops. Manifestly, thus there would not be any hindrance on the easementary rights of these shopkeepers to get fresh air, sunlight etc. through that 15 feet wide area and in case, any hinderance is caused, the proper party to sue would be the owner of the strip of land, i.e. Mahila Bal Kalyan Kendra. The Municipality has no obligation towards the appellant in this regard. 14. It may also be noted here that the suit was originally filed by four plaintiffs. Only two of them, i.e. Dayakishan and Govind, filed the appeal against the impugned judgment of the trial court. The other two accepted the trial court's verdict. Out of the two appellants before the first appellate court, only the appellant herein has chosen to approach this court through this second appeal. Manifestly, this is also an important circumstance, which goes to show that most of the plaintiffs before the trial court realized the futility of their actions. 15. The other two accepted the trial court's verdict. Out of the two appellants before the first appellate court, only the appellant herein has chosen to approach this court through this second appeal. Manifestly, this is also an important circumstance, which goes to show that most of the plaintiffs before the trial court realized the futility of their actions. 15. In wake of the above discussion, I am of the firm opinion that the instant second appeal involves no substantial question of law warranting its admission. The Municipality is directed to ensure that the encroachments if any made by the shopkeepers on the public road are removed forthwith. A copy of the judgment shall be forwarded to the Municipality Bhadra for compliance. With these observations and directions, the second appeal fails and is hereby dismissed. Decree be prepared accordingly.