2014 Supreme(Raj) 1765
RAJASTHAN HIGH COURT
Arun Bhansali, J.
Lrs of Baktaram - Appellant
Versus
Vijay Singh - Respondent
S.B. Civil Second Appeal No. 155 of 2013.
Decided On : 7-10-2014
Advocates:
For the Appellant:K.C. Samdariya, Advocate.
For the Respondent:Devendra Sanwalot, Advocate.
A suit for declaration and injunction against a public nuisance or wrongful act affecting the public is maintainable under Section 91 CPC, even if no special damage is caused to the plaintiffs.
Headnote:
PUBLIC NUISANCE - SECTION 91 CPC - SECTION 3(48) GENERAL CLAUSES ACT, 1897 - SECTION 268 IPC - PUBLIC NUISANCE - WRONGFUL ACT AFFECTING THE PUBLIC - SUIT FOR DECLARATION AND INJUNCTION - MAINTAINABILITY - BURIAL PLACE FOR CHILDREN - PUBLIC USE - OBSTRUCTION AND TRESPASS - COMMON INJURY, DANGER OR ANNOYANCE - EVIDENCE - COMMISSIONER'S REPORT - FACTUAL FINDINGS - SUBSTANTIAL QUESTION OF LAW.
Fact of the Case:
Plaintiffs filed a suit for declaration and permanent injunction against the defendants, claiming that a children's cremation place (burial place) was being used by the villagers for over 100 years and that the defendants were attempting to trespass on the land. The plaintiffs sought a declaration that the land was a burial place and an injunction restraining the defendants from trespassing.
Finding of the Court:
The court held that the suit was maintainable under Section 91 CPC as the act complained of by the plaintiffs, i.e., obstruction and/or attempted trespass on the suit land being used by the public as a 'children's burial place,' would clearly amount to public nuisance as defined under Section 268 IPC. The court also held that the factual findings recorded by the trial court and the first appellate court regarding the existence of a children's burial place could not be faulted on any ground and did not give rise to any substantial question of law.
Issues: 1. Whether the suit was maintainable under Section 91 CPC? 2. Whether the plaintiffs had proved their case that the suit land was a burial place? 3. Whether the defendants were entitled to trespass on the suit land?
Ratio Decidendi: 1. Section 91 CPC permits institution of a suit by two or more persons aggrieved by a public nuisance or wrongful act for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case. 2. A public nuisance is defined under Section 268 IPC as an act or omission which causes common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. 3. The act complained of by the plaintiffs, i.e., obstruction and/or attempted trespass on the suit land being used by the public as a 'children's burial place,' would clearly amount to public nuisance as defined under Section 268 IPC. 4. The plaintiffs had produced evidence in the form of witness statements and a Commissioner's report to prove that the suit land was a burial place. 5. The defendants had not filed any written statement or produced any evidence to support their claim to the suit land.
Final Decision: The court dismissed the appeal and the stay application, holding that there was no substance in the appeal and that the factual findings recorded by the courts below could not be faulted on any ground.
JUDGMENT
1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 25.05.2013 passed by Additional District Judge, Sojat, District Pali, whereby, judgment and decree dated 17.09.2011 passed by Civil Judge (Junior Division), Sojat, District Pali has been upheld.
2. The facts in brief may be noticed thus : the plaintiffs Vijay Singh and Dhanna Ram filed a suit for declaration and permanent injunction against the defendants-appellants with the averments that plaintiffs were residents of village Sojat Road and look after the public interest issues; they were elected as Panch from their respective wards in the Panchayat Elections; in the urbanized area of Sojat Road a children's cremation place (cPpksa dk 'e'kku) is situated, which was marked as d] [k] x and ?k in the map annexed with the plaint; the land was comprised in Khasra No. 199 ad measuring 0.46 hectare, which was being used for over 100 years for burial of deceased children; there were hundreds of graves of children at the suit land and, on account of such user, the villagers have acquired easement; it was then averred that village Sojat Road was earlier a Jagirdar village, whose Jagirdar was Indrajeet Singh S/o Shri Narpat Singh; land on the eastern side of the suit land was sold by them to Sita Devi, Pushpa Devi, Rambha Devi and Sri Ram by registered sale deed, wherein, on the western side reference of disputed burial place is indicated; such land cannot be sold nor anybody gets any right in such land; however, defendant No. 1 claiming to have purchased the suit burial land comprised in Khasra No. 199 from the Jagirdar, got his name recorded in the revenue record, when in fact the Jagirdar had not executed any sale deed in favour of Pyare Lal; the Tehsildar for the purpose of correction of revenue entry and for declaration of suit land as burial place, filed a suit before the Assistant Collector, Sojat, which was decided on 20.03.1992 and the land was declared as flok; pd xSj eqefdu 'ke'kku (Government land, uncultivable burial place); against the said order, an appeal was filed before the Revenue Appellate Authority, who found that declaratory relief could not be granted by the revenue courts and, therefore, set aside the decree; it was alleged that the defendants despite resistance by the villagers, were bent upon trespassing on the suit land, if they succeed in their attempt, the villagers would be deprived of user; ultimately, it was prayed that it be declared that the land comprised in Khasra No. 199 ad measuring 0.46 hectare was a burial place, regarding which, the villagers have easementry rights and sought permanent injunction against the defendants from trespassing on the suit land.
3. Along with the suit, an application under Section 91 CPC was filed seeking leave of the Court to file the suit; the trial court granted the permission subject to objection.
4. Despite repeated attempts, the defendants did not file any written statement, therefore, right to file written statement was closed.
5. The trial court noticed that as written statement was not filed issues were not required to be framed, however, points for determination were framed.
6. On behalf of the plaintiffs - seven witnesses were examined; on behalf of the defendants - five witnesses were examined.
7. After hearing the parties, the trial court came to the conclusion that this fact was undisputedly proved that the suit land was being used by the villagers as burial ground for children for a long time; the necessary ingredients regarding dominant heritage and other ingredients for seeking various kinds of easements were not available; the plaintiffs were entitled to declaration regarding the suit land being a cremation ground/burial place and for permanent injunction; consequently, the trial court decreed the suit filed by the plaintiffs and declared the suit land as cremation ground/burial place for dead children and restrained the defendants from trespassing on the suit l
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