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1999 Supreme(P&H) 800
PUNJAB & HARYANA HIGH COURT
Arun B.Saharya, J.
Baldev Singh Chahal
Versus
Madan Lal Gulati
Regular Second Appeal No. 1 of 1980,
Decided On : AUGUST 5, 1999
A stipulation in a sale deed granting the plaintiff the right to use a street/road carries with it a corresponding obligation on the part of the defendant to permit it to be so used by the plaintiff.
Headnote:
SPECIFIC RELIEF ACT, 1963 - SECTION 38 - INJUNCTION - PUBLIC STREET - EASEMENT - SALE DEED - STIPULATION - RIGHT TO USE - OBLIGATION TO PERMIT USE - MAINTAINABILITY OF SUIT - SECTION 91 CPC - PUBLIC NUISANCE - SPECIAL DAMAGE - NEW CASE - CONCURRENT FINDINGS OF FACT - INTERFERENCE IN SECOND APPEAL.
Fact of the Case:
Plaintiff filed a suit for permanent injunction to restrain the defendant from interfering with his peaceful enjoyment of a street adjoining his house and from raising any construction that would obstruct the use of the street. The plaintiff claimed that he and other residents had been using the street for over 3 and a half years and that the defendant was trying to obstruct it by raising a wall. The defendant pleaded that there was no street and that the land in dispute was his own property.
Finding of the Court:
The trial court and the District Judge found that the street in dispute was a public street and that the plaintiff had a right to use it. They also found that the defendant was interfering with the plaintiff's right to use the street and granted a permanent injunction restraining the defendant from doing so.
Issues: 1. Whether the suit was maintainable without obtaining leave of the court under Section 91 of the Code of Civil Procedure (CPC). 2. Whether the plaintiff had failed to prove special damage caused to him by the alleged wrong in respect of the public street in dispute. 3. Whether the two Courts below had erred in making out a new case for the use and enjoyment of the road/street in question, though it is not a public street.
Ratio Decidendi: 1. The suit was maintainable without obtaining leave of the court under Section 91 CPC because the plaintiff was seeking enforcement of his individual right and not a remedy for a wrong affecting the public. 2. The plaintiff was not required to prove special damage because his claim for perpetual injunction arose out of the stipulation made for that purpose inter se parties under the sale deed. 3. The two Courts below did not make out a new case for the use and enjoyment of the road/street in question because the stipulation in the sale deed granting the plaintiff the right to use the street/road in question carried with it a corresponding obligation on the part of the defendant to permit it to be so used by the plaintiff.
Final Decision: The appeal was dismissed with costs.
Arun B.Saharya, J.
1. In this Regular Second Appeal filed under Section 41 of the Punjab Courts Act, 1918 (prior to its amendment w.e.f. 9.12.1998), the appellant defendant has challenged the judgment and decree dated September 13, 1979, passed in appeal by the District Judge, Patiala, dismissing his first appeal and confirming the decree for permanent injunction passed by the trial Court, thereby restraining him from interfering with the Respondent-plaintiffs peaceful enjoyment of the street or from raising any construction so as to obstruct use of the said street on the side of his house, situated in Pili Sarak, Raghomajra, Patiala.
2. In the suit, the plaintiff has claimed that he, and the other residents of the locality have been using the street in dispute adjoining the house in his possession for the last more than 3 and 1/2 years; and that the defendant is trying to obstruct the same by raising a wall. Contesting the suit, the defendant has pleaded, inter alia, that there is no street and the piece of land in dispute is his own property. An additional objection is raised that the suit is not maintainable.
3. On the basis of the personal inspection of the site, and the documentary and oral evidence on record, namely, Sale Deed Exhibit P2 and Site Plan Exhibit P1 and the deposition of PW1, PW2 and PW3, the trial Court has granted the injunction and decreed the suit. The relevant findings recorded in paragraph Nos. 11 and 13 of the trial Court judgment are extracted below:-
11. "From the evidence on record, therefore, I find that the plaintiff is owner of the property adjoining the property in dispute towards the Eastern side and the site in dispute is a public street as per admissions of the defendant himself in the Sale Deed and the Site Plant Exhibit P-1 and Exhibit P-2 respectively........"
13. "I have already seen while discussing issues No. l and 2 that the site in dispute is a road which has been left as such by the defendant before selling the adjoining house to the plaintiff and there is a clear mention of the same in the sale deed as well as in the site plan on the record, although there is no cogent evidence to show that the plaintiff or the other persons have been using it uptill now but that does not change the nature of the site. The plaintiff now proposes to make construction towards that side and use it as a second approach to his house.....He is a purchaser of adjoining house and has a right to use this road and as such he is entitled to the injunction prayed for......."
4. In first appeal, the learned District Judge has affirmed the aforesaid findings of the trial Court and turned down objection to maintainability of the suit on the plea that it has been instituted without obtaining leave of the court under Section 91 of the Code of Civil Procedure (CPC).
5. Now, in the second appeal, learned counsel for the appellant has challenged the decree on three grounds. First, he has urged that the suit for injunction filed without complying the requirements of Section 91 CPC, must fail. Secondly, the plaintiff has also failed to prove special damage, if any, caused to him by the alleged wrong in respect of the public street in dispute. Thirdly, that the two Courts below have erred in making out a new case for the use and enjoyment of the road/street in question, though it is not a public street.
6. The learned District Judge has rejected the plea that the suit did not lie without obtaining leave of the Court under Section 91 C.P.C. as it is not taken in the written statement. The objection that is taken relates to maintainability of the suit "in the present form". There are various other objections available in law in respect of maintainability of a suit in the given form. The specific objection under Section 91 C.P.C. is really not taken. Even, otherwise, in view of the following discussion, the suit is not hit by Section 91 C.P.C.
7. It is no doubt true that the plaintiff has averred at one place only i
