- (1.) This is plaintiffs' second appeal whose suit for the grant of the permanent injunction restraining the defendants from raising any construction on the suit land was decreed by the trial Court, but dismissed in appeal.
(2.) According to the plaintiffs, the suit land which is described as chowk in the site plan was allotted to them in the year 1953 by the Government of India and the conveyance deed had also been issued to them on April 25, 1977. They pleaded that the suit land was being used by them as sehan since 1953 and the doors, windows and appertures of the house opened in the suit land. It was further pleaded that even if the plaintiffs are not proved to be the owners of the suit land even then they had acquired easement rights as they were using the suit land since 1953. According to them, the Municipal Committee had no concern with the suit land, but it was attempting to raise construction thereon without any right, title or interest hence the present suit.
(3.) The defendants contested the suit on all counts pleading that the civil Court had no jurisdiction to try the suit and that the plaintiffs were estopped from filing the suit by their act and conduct. On merits it was pleaded that the suit land was owned and possessed by the Municipal Committee and the plaintiffs wanted to occupy the same illegally. The trial Court after framing the issues and allowing the parties to lead evidence came to the conclusion that the suit land was not owned by the plaintiffs though used by them as well as by other public of the city. It was further found that the Municipal Committee had no right to raise any construction on the suit land which obstructed the way of the plaintiffs and therefore, the defendants were not entitled to raise any construction on the suit land. Consequently, the plaintiffs' suit was decreed restraining the Municipal Committee from raising any construction over the suit land. In appeal, the learned Additional Distt. Judge affirmed the findings of the trial Court as regards the ownership of the suit property. As regards the raising of the construction by the Municipal Committee, the learned Additional District Judge, found, "It is true that normally a municipal committee cannot be allowed to change the nature of a public street and to close it by raising construction to the detriment of its users. However, in the case in hand, it is proved from the statement of DW 3 Om Parkash, Municipal Engineer, that previously this land was part of the road but after the construction of the drain, it is no more a part of the road and it cannot be used as such. A perusal of the site plan, Ex. PW1 produced by the plaintiff Chaman Lal goes to show that towards the south of his house there is a thorough passage and there is no other house towards three sides of the site in dispute, and on the 4th side the house of the plaintiff Chaman Lal is there and this portion can only be beneficial to Chaman Lal and to no other person." In view of this finding, the lower appellate Court found that portion cannot be used as a part of the road hence no restriction can be imposed upon the municipal committee about raising construction thereon. The income derived by the construction of the shops would be used for the benefit of the public. In view of that finding and the fact that the plaintiffs were using the land for their ingress and egress to their house, the lower appellate Court modified the decree of the trial Court and held that the defendant Municipal Committee was entitled to raise construction over the portion ABJI after, leaving a four feet wide passage for ingress and egress to the plaintiffs' house.;