B. R. ARORA, J. - (1.) THIS appeal is directed against the decree and judgment dated February 20, 1992, passed by the District Judge, Sirohi, by which the learned District Judge dismissed the appeal filed by the appellant and maintained the decree and judgment dated February 13, 1986, passed by the learned Civil Judge-cum-Chief Judicial Magistrate, Sirohi.
(2.) BHEEKAM Chand, on August 6, 1977, filed a suit for declaration and mandatory and prohibitory injunction against Smt. Parvati Bai and Bhanwar Lal. It was averred in the plaint that the plaintiff owns a house bearing Survey No. 792 in Pechako Ka Bas of village Sheoganj In the southern part of this house, there is a public street having Survey No. 793. According to the plaintiff, the defendants made Pacca construction over 7 1/2 x 45' over this public street. It was further averred that on an application moved by the plaintiff on December 21, 1926, he was allowed to open four doors on this part of the road by the Tehsildar, Sheoganj, vide its order dated September 20, 1930. It was further averred that the defendants have no right to make encroachment upon the public street and raise construction and as they have obstructed in the use of the public street, therefore, by a mandatory and permanent prohibitory injunction, the defendants may be directed to demolish the constructions raised by them and they may further be restrained to raise any construction over it and not to interfere in the opening of four doors on the side by the plaintiff. This suit was contested by the defendant Smt Parvati Bai and it was averred in the written statement that this plot in question belongs to her father and after the death of her father and as her brother became a Sadhu, certain valuables from the house in question were taken-away and the plaintiff tried to encroach upon the defendant's plot in question and he wants to purchase this plot, for which she did not agree and, therefore, the present suit has been filed. An objection regarding the maintainability of the suit without proper sanction under Section 91 of the C. P. C. was, also taken. The question of limitation was, also, raised and certain other objections were also, raised regarding the cause of action, etc. The case was, thereafter, transferred to the Court of the learned Civil Judge, Sirohi, for trial. On the basis of the pleadings of the parties, the learned trial Court framed ten issues. The plaintiff, in suppot of its case, examined himself as PW 1 and, also, produced PW 2 Gulab Chand, PW 3 Loon Chand, PW 4 Banshi Lal and PW 5 Nain Mal. He also, placed reliance over certain documents. The defendants in support of the case, examined herself as DW 1 and produced DW 2 Champa Lal and DW 3 Jas Raj. The learned Civil Judge, after trial, decreed the suit filed by the plaintiff by its decree and judgment dated February 13, 1986. Dissatisfied with the decree and judgment dated February 13, 1986, passed by the learned Civil Judge, Sirohi the defendant-appellants preferred an appeal before the learned District Judge, Sirohi, who, by its decree and judgment dated February 20, 1992 dismissed the appeal filed by the appellants and maintained the decree and judgment pissed by the learned Civil Judge Sirohi. It is against this decree and judgment dated February20, 1992, passed by the learned District Judge, Sirohi, that the appellants have preferred this appeal. The first contention, raised by the learned counsel for the appellants, is that the wrongful act that caused injury in the present case, is complete by raising a permanent construction over the land in question and, therefore there is no question of any continuing wrong as the Pacca construction, raised by the defendants, amounts to complete ouster and, therefore, the provisions of Section 22 of the Limitation Act, 1963, do not apply in the present case. It is not in dispute that over 7 1/2 x 45' of the palblic road, a Pacca construction has been raised by the defendants and, therefore, it has to be seen whether this Pacca construction, raised on the public land, causes injury, which is a complete and there is no continuing wrong though the damages resulting from the act is continuing one ? Raising the construction over a public street creates a continuous source of injury and though the construction, raised by the defendants is of complete nature but the injury is continuing one and there is no question of any outer in the present case because each and every time when an obstruction is created in the ingress and agress from the house or in the use of the public street, it causes an injury, obstruction or annoyance each and every time on the right of the public to pass through the street, and his right is infringed. The right of the public to pass-through a public street is a valuable right of the public and there is no question of completion of the injury. The act of the defendants, creating a continuous source of injury to the rights of the public, which pass-through the public street, amounts to continuing wrong and, therefore, the provisions of Section 22 of the Limitation Act are attracted in the present case. Whether the construction or the obstruction raised over the public street, is a permanent or temporary, that will not make any difference, so far as the rights of the public to get the obstruction removed is concerned. The public nuisance, created on the public street by any person; whether it is a permanent or temporary construction, can be removed at the instance of a public man or a person whose house is situated adjoining the public street, over which the construction has been made. There is no question of any ouster merely by raising a permanent construction/structure over the public street. The next contention, raised by the learned counsel for the appellants, is that the plaintiff has not pleaded the material facts in the plaint and has also, not stated how the cause of action accrued to him and, therefore the absence of the pleadings of the material facts in the plaint, the suit filed by the plaintiff deserves to be dismissed. His further contention is that the plaintiff has, also not pleaded his easementary right over the disputed property and has, also not given the date of the encroachment and, therefore, no cause of action accrues to the plaintiff and, therefore, the suit filed by the plaintiff deserves to be dismissed under order 7 rule 11 C. P. C. The defendant has made an encroachment over the public street and has raised construction over the same and as such she has caused a public nuisance and has interfered with the right of the public to pass through the public street. Every individual has a legal right to pass through the public street and if any interference with this right is made by any other person and an obstruction is created in the public street then that will amount to public nuisance and gives a cause of action to every person of public to file a suit for declaration of such rights Even otherwise, also, the plaintiff is the owner of the house which adjoins the public street and the owner of the land adjoining a public street is entitled to have an access to that public street at any point at which his land actually touches it The right of ingress and egress of an adjoining owner to and from his premises to the public street and vice versa is a private right and an interference with this right amounts to obstruction to the right of access and amounts to continuing wrong. The plaintiff is therefore, entitled to the access to the public street at every point where the property belonging to him touches the public street. The use of the public street by the public is a higher right of the public in general and it is not an easementary right and, therefore, it is not necessary to plead easementary right as the infringement of the public right or the creation of the public nuisance, gives rise to continuous cause of action and, therefore, no question for any adverse possession arises in such matter where the construction has been raised over a part of the public street. The suit, filed by the plaintiff, therefore, cannot be thrown away on this count. The next contention, raised by the learned counsel for the appellants, is that the suit filed by the plaintiff deserves to be dismissed on the ground of non-joinder of the party. According to him, the Municipal Board. Sheoganj, was a necessary party to the proceedirg and in the absence of the Municipal Board, Sheoganj the suit could not have proceeded with and deserves to be dismissed on this ground. According to the judgment of the Apex Court in the case of Udit Narain Singh Malatharia vs. the Additional Member, Board of Revenue Bihar (i), a necessary party is one without whom no order can be made effectively and a proper party is one, in whose absence an order can be made, but whose presence is necessary for a complete and final decision of the question involved in the proceeding. Now, it has to be seen, whether the Municipal Board, Sheoganj, is a necessary or proper party to the proceeding or whether any effective decree can be passed and executed against the defendants in the absence of the Municipal Board, Sheoganj? The plaintiff, in the present case, came with a case that the defendants have raised a construction over the public street which should be removed. The plaintiff is, therefore, seeking the relief for removing the encroachment made by the defendants on a part of the public street and is in unlawful possession of the same and it is possible for the Court to pass an effective decree for the removal of that encroachment made by the defendants even in the absence of the Municipal Board, Sheoganj. The construction over the public street has not been made by the defendants with the permission of the Municipal Board, Sheoganj, and even if it has been made at the instance of the Municipal Board, even then the construction can be removed because the Municipal Board, Sheoganj, has no power to give sanction/permission with respect to the construction to be made by the defendants on a part of the public street. The decree for the removal of the unlawful construction can be passed in the absence of the Municipal Board, Sheoganj, and that can, also, be executed even in the absence of the Municipal Board and no action is required to be taken against the Municipal Board. The Municipal Board is, therefore neither a necessary nor a proper party to the proceeding and the suit, therefore cannot be thrown away on this court.
(3.) THE next ground, raised by the learned counsel for the appellants is that the Patta with respect to the land in question is in the name of the father and the brother of the defendant-appellant Smt. Parvati Bai, who have not been made parties to the proceedings and, therefore, no effective decree can be passed in their absence. In this connection, suffice it to say that the construction over the public street has been made by the defendant-appellant and the plaintiff has only sought a prayer for removal of that unlawful construction raised by the defendant-appellant Smt. Parvati Bai over the public street and, therefore, the persons, in whose names the pattas of the adjoining lands have been issued, are not necessary parties as no relief has been prayed against them and the only relief prayed-for is with respect to the removal of the construction made over the public street and no Patta has been issued so far as this part of the public street is concerned, over which the construction has been made. THE father and the brother of the defendant-appellants are, therefore, not necessary parties and an effective decree can be passed and executed against the defendant-appellants even in their absence. The last contention, raised by the learned counsel for the appellants, is that no specific injury has been pleaded by the plaintiff and it is not a case of public nuisance and, therefore, the suit is not maintainable without the previous consent of the Advocate General. The defendant has raised a permanent construction over the public street. An individual has a right to pass through a public street and if any interference with this right of the public man is made then that interference amounts to a public nuisance. Public nuisance includes an act which causes or which must necessarily cause injury, obstruction or annoyance to a person who may have occasion to use any public road. If an obstruction is created to the right of way of a person that amounts to a public nuisance. Even otherwise, every person has a right of ingress and egress from each part of his property to the public street and if any interference is made in this right then that also, amounts to a public nuisance and an obstruction or interference in such right of public, gives right to him to maintain a suit in respect of public nuisance and it is not necessary to prove any other specific damages. No specific damages or special injury is required to be pleaded or proved and a suit for declaration of such a right and for removal of a public nuisance or for injunction restraining the defendant, who interfered the such right and created a public nuisance, is maintainable and no special injury or specific damage is required to be proved. In this view of the matter, no substantial question of law is involved in the present civil second appeal, filed by the appellant, and the same is therefore, dismissed. But, however, the appellants are allowed six months time to remove the construction measuring 7 1/2 x 45 raised on the public street. In case the defendant-appellants will not remove the obstruction within the period of six months then the plaintiff will be free to get the decree executed by due process of law and get the obstruction/construction aforesaid removed. . ;