IMPORTANT POINT
Encroachment on public street constitutes continuing wrong.

JUDGMENT

Dr. Mukundakam Sharma, J. —

1. Leave granted.

2. By this judgment and order, we propose to dispose of the aforesaid appeal which is filed by the appellant herein after being aggrieved by the judgment and order passed by the High Court in RSA No. 2698 of 2008 affirming the judgment and decree passed by the trial Court in Civil Suit No. 160 of 2003 which was affirmed by the First Appellate Court in Civil Appeal No. 92 of 2007. These facts, therefore, make it crystal clear that the present appeal is directed against the concurrent findings of fact of the High Court, the first Appellate Court i.e. the judgment of the Additional District Judge and the trial court which was the Court of Civil Judge (Junior Division).

3. In order to appreciate the contentions raised before us by the learned counsel appearing for the appellant, it would be necessary to set out certain basic facts leading to filing of the present appeal.

4. The suit was filed by the respondent herein contending inter alia that all the six persons including respondent No. 1 have their common interest in the disputed street alongwith co- inhabitants of the same area. It was stated that the residential houses of the respondents are falling in the site plan which indicates that there is a common street for ingress and egress of the general public. It was alleged in the plaint that earlier Bal Kishan Dass who was examined as PW-4 was the original owner of the entire area out of which he curved out a colony selling plots in favour of various parties. It was also stated in the plaint that at that time itself a 10 feet wide public street was left on the ground as detailed in the site plan for the common use of all the plot holders of the colony, but further allegation was that the appellant/defendant from the time of possession of his plot had evil eye on the aforesaid disputed street and the defendant No. 1 and he namely defendant No. 2 encroached upon substantial part of the same making the street narrowed down causing inconvenience to the users of the said street. Incidentally the suit was filed invoking Order I Rule 8 of Code of Civil Procedure [called in short ‘C.P.C.’].

5. In the plaint it was further stated that earlier the respondent No. 1 as complainant filed a complaint under Section 133 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) which was decided in favour of the plaintiff/respondent No. 1 and the said judgment was passed by the SDM.

6. When the matter was challenged before the Punjab and Haryana High Court, the High Court held that the matter which is agitated relates to disputed facts and therefore requires evidence and that the dispute between the parties could only be effectively decided if a civil suit is filed. As the High Court had held that the dispute between the parties would be decided by filing a civil suit, consequently the aforesaid plaint was filed in the Court of Civil Judge (Junior Division) which was registered as Civil Suit No. 160 of 2003.

7. Defendant Nos. 1 and the present appellant as defendant No. 2 filed a combined written statement raising objections regarding the maintainability of the suit and also with regard to the merit of the contentions raised in the plaint. On the basis of the pleadings of the parties, four issues were framed by the trial court to the following effect:

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, Distt. 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.

8. To substantiate his case, the plaintiff/respondent No. 1 examined 8 witnesses and produced some documents whereas the present appellant as defendant No. 2 examined hims