Dismissed

Sohan Singh @ Sohan Lal Gehlot v. Nagar Nigam, Jodhpur

Rajasthan HC18 Jan 2021CSA/156/2019

Case brief

AI extract

What is this about?

In S.B. Civil Second Appeal No. 156/2019, the High Court of Rajasthan rejected the appeal, dismissing the suit for permanent injunction. The court held the construction was an encroachment on public street and upheld the lower courts' findings.

What did the court decide?

The appeal was dismissed; the judgments of the trial court and first appellate court were upheld.

Sohan Singh @ Sohan Lal Gehlot Vs Nagar Nigam, Jodhpur — Property and Title | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 156/2019

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Sohan Singh @ Sohan Lal Gehlot S/o Shri Sanwal Singh Ji Gehlot, Aged About 58 Years, R/o Ramdeo Ji Ki Gali, Chandpole, Jodhpur (Rajasthan)

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Versus

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Nagar Nigam, Jodhpur, Through Commissioner

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Damodar S/o Shri Jograj Ji, B/c Mochi, R/o Ramdeo Ji Ki Gali, Chandpole, Jodhpur (Rajasthan)

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For Appellant(s) : Mr. J. Gehlot. For Respondent(s) :

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Judgment

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18/01/2021

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This appeal is directed against the judgment and decree dated 14.12.2018 passed by Additional Civil Judge No.6, Jodhpur Metro and judgment and decree dated 26.4.2019 passed by Additional District Judge No.4, Jodhpur Metro, whereby, the suit and appeal filed by the appellant seeking permanent injunction, have been rejected.

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The suit was filed by the appellant against the Municipal Corporation and one Damodar inter alia with the submissions that the house of the plaintiff was situated at Ramdevji Ki Gali, Chandpole Goar, Jodhpur, which licence was issued to plaintiff’s father by UIT on 1.3.1969, construction was undertaken in the year 1974-75 and plaintiff’s father died in the year 2004. It was claimed that on the property of the plaintiff, on two corners, one

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(2 of 4)

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[CSA-156/2019]

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toilet and one bathroom were constructed on Chabutri, which was being used by the plaintiffs and his tenants. It was alleged that the employees of the Municipal Corporation threatened to demolish the house, Chabutri, toilet and bathroom. Allegations were made that defendant No.2 had bad intentions, who wanted to grab the property. It was contended that the Municipal Corporation has no right to demolish the toilet and bathroom and, therefore, they be restrained from doing the same.

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Written statement was filed by the Corporation indicating that the plaintiff has constructed the toilet and bathroom on road i.e. public property and was warned in this regard, however, he has not removed the illegal construction and, therefore, action was being taken. The suit be dismissed.

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Defendant No.2 also contested the averments made in the suit.

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The trial court framed four issues. On behalf of the plaintiff, he himself was examined as PW/1 and produced 11 documents. No evidence was produced by the defendants.

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After hearing the parties, the trial court came to the conclusion that though the plaintiff succeeded in proving that the property in his possession was part of the licence, it came to the conclusion that the toilet and bathroom were constructed beyond the plaintiff’s property and based on his admission in the crossexamination that the toilet and bathroom were beyond the balcony, came to the conclusion that the same were constructed on public road and consequently dismissed the suit.

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Feeling aggrieved, the appellant filed first appeal.

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The first appellate court, after hearing the parties, reiterated the findings recorded by the trial court and came to the conclusion

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(3 of 4)

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[CSA-156/2019]

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that the plaintiff had trespassed on the public road while constructing toilet and bathroom and, therefore, judgment passed by the trial court does not call for any interference and dismissed the appeal.

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Learned counsel for the appellant made vehement submissions that once the trial court has come to the conclusion that the appellant was in possession of the property in terms of the licence, there was no occasion for it to come to the conclusion that the toilet and bathroom constructed were beyond the licenced property and, therefore, the findings in this regard stands vitiated and give rise to substantial question of law.

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Further submissions have been made that once it was found that the plaintiff was in possession of the toilet and bathroom, the same could not be demolished without due process and on that count also, the appellant was at least entitled to decree in this regard, therefore, the dismissal of the suit was not justified. On the said aspect also, finding stands vitiated and gives rise to substantial question of law.

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Reliance was placed on judgments in Mohan Lal & Anr. v. Smt. Rahisa Begum & Ors.: 2011(2) DNJ (Raj.) 732 and Rame Gowda (D) by LRs v. M. Varadappa Naidu (D) by LRs. & Anr.: 2004 DNJ SC 263 .

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I have considered the submissions made by learned counsel for the appellant and have perused the material available on record alongwith the record of the trial court.

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A bare perusal of the documents (Ex.4 and Ex.5) clearly reflects that the offending construction was beyond the plaintiff’s house and was on public street. Further Ex.6 which is a picture of the street as a whole, also indicates that in none of the houses

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(4 of 4)

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[CSA-156/2019]

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there have been such nature construction beyond their houses. In view thereof, the two courts below were perfectly justified in coming to the conclusion that the offending constructions were by way of tresspass on public street and as such the appellant was not entitled to any relief. The said findings recorded by the two courts below cannot be faulted on any count.

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So far as the submissions regarding respondents to follow due process of law is concerned, for removal of encroachment from the public way, the Corporation has enough powers under the Rajasthan Municipalities Act, 2009, and as such the plea raised in this regard also has no substance.

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The reliance placed on judgments in Mohan Lal (supra) and M. Varadappa Naidu (supra) is also of no help to the appellant, inasmuch as, once it is found that appellant has encroached on the public way by raising construction of toilet and bathroom, he has no right to claim any relief.

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Consequently, both the judgments impugned do not give rise to any substantial question of law. The appeal has no substance. The same is, therefore, dismissed.

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(ARUN BHANSALI),J

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10-Sumit/-

Sohan Singh @ Sohan Lal Gehlot v. Nagar Nigam, Jodhpur

Case brief

What is this about?

What did the court decide?

Sohan Singh @ Sohan Lal Gehlot v. Nagar Nigam, Jodhpur

Case brief

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What did the court decide?

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