Madhya Pradesh High Court
Pushpendra Sharma vs Ram Singh Yadav on 24 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1944
1 SA-2203-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 24th OF JANUARY, 2025
SECOND APPEAL No. 2203 of 2024
PUSHPENDRA SHARMA
Versus
RAM SINGH YADAV AND OTHERS
Appearance:
Shri MPS Raghuvanshi- Senior Advocate with Shri G.S. Sharma and
Shri Vijay Kumar Jha- Advocates for appellant.
Shri S.K. Sharma- Advocate for respondent No.1.
ORDER
This second appeal, under Section 100 of CPC, has been filed against
judgment and decree dated 08.08.2024 passed by III District Judge, Guna
(M.P.) in RCA No.15/2023, thereby affirming the judgment and decree dated
13.01.2023 passed by III Civil Judge, Senior Division, Guna (M.P.) in Civil
Suit No.281A/2017 by which the suit filed by the plaintiff for removal of
illegal construction raised by the appellant and for maintaining status quo
ante has been decreed.
2. It is the case of respondent No.1/plaintiff that he is the owner and in
possession of house situated in Sitaram Colony, Ward No.31, Tahsil and
District Guna. On eastern side of the disputed road, there is a road of 10 feet,
on the western side, house of one Shrivastava is situated, whereas on the
Northern side there is another road and on the eastern side house of one Jain
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is situated. It was alleged that defendant is constructing a staircase of 4 feet
in the said street of 10 feet. In spite of persuasion by plaintiff, the defendant
did not stop the construction of the staircase in the public street of 10 feet, as
a result, it would be difficult for the plaintiff to use public street. Complaint
was made to the Chief Municipal Officer, and accordingly, the Chief
Municipal Officer sent his employees to stop construction. Defendant No.1
started abusing the plaintiff and accelerated the speed of constructing
staircase. It was alleged that in case defendant No.1 succeeds in constructing
the staircase, then it would reduce the width of the street. During pendency
of suit, the plaint was amended and it was pleaded that defendant No.1 has
completed construction of staircase, therefore, the same may be demolished.
3. Appellant/defendant filed his written statement and submitted that
since the suit has been filed in respect of public street, therefore, the suit is
not maintainable in the light of the provision of Section 91 of CPC. It was
admitted that house of plaintiff is situated at a place which was claimed by
him. However, it was denied that defendant is constructing a staircase of 4
feet. It was pleaded that there is a balcony of 3 feet and below this balcony,
defendant is proposing to construct staircase of 2 feet only. Counter-claim
was filed, and it was pleaded that the plaintiff keeps his handcart from 5:00
p.m. till 12:00 noon for sale of tea and Pakoda, as a result, the smoke reaches
up to the house of defendant, thereby creating a possibility of fire and
accordingly it was pleaded that plaintiff has no right to create nuisance after
encroaching upon the street in question. Thus, a declaration was sought that
plaintiff may be restrained from putting his handcart and burning kerosene.
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4. The trial court, after recording evidence of parties, decreed the suit
and directed defendant No.1 to remove the staircase as well as
latrine/bathroom constructed by him in the 10 feet wide street, and plaintiff
was also permanently restrained from putting his handcart thereby
encroaching upon the street. Being aggrieved by the said judgement and
decree, defendant No.1 preferred an appeal, which too, has been dismissed
by the impugned judgement and decree.
5. Challenging the judgement and decree passed by courts below, it is
submitted by counsel for appellant that since the suit was filed in respect of a
public street, and therefore it was bad in the light of Section 91 of CPC.
6. Heard learned counsel for applicant.
7. Section 91 of CPC reads as under:-
91. Public nuisances .-
(1) In the case of a public nuisance or other wrongful
act affecting, or likely to affect, the public, a suit for a
declaration and injunction or for such other relief as
may be appropriate in the circumstances of the case,
may be instituted,-
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more
persons, even though no special damage has been
caused to such persons by reason of such public
nuisance or other wrongful act.
(2)Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions.
Thus it is clear that in case of public nuisance or other wrongful act
affecting or likely to affect the public, a suit for declaration and injunction
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can be instituted with the leave of court by two or more persons, even
though no special damage has been caused to such persons by reason of such
public nuisance or other wrongful act. In light of Section 91 (2) of CPC, it is
clear that nothing in this section shall be deemed to limit or otherwise affect
any right of suit which may exist independently of its provisions.
8. Plaintiff Ram Singh Yadav (PW1) has admitted that his house is
situated in Sitaram Colony. Earlier, ward number was 31, and now it's ward
number is 35. On the northern side of house, house of defendant is situated,
and in between both the houses, there is a public street of 10 feet width. It
was alleged that defendant No.1 has constructed a staircase in the public
street and also constructed latrine and bathroom under the staircase as a
result the width of street has reduced to 6 feet. It was further alleged that
since house of plaintiff is at the end of street, therefore, act of defendant is
not causing any inconvenience to anybody else.
Thus, it is clear that defendant has encroached upon public street, but
because the houses of plaintiff and defendant are situated at one end of street,
therefore, any encroachment made by defendant No.1 will not cause any
inconvenience to anybody else.
9. Furthermore, it is the case of encroachment on public land, and it is
not the case of public nuisance. Counsel for appellant could not point out the
right of plaintiff to construct the staircase on a public street by encroaching
upon 4 feet of the said land.
10. Faced with such a situation, counsel for appellant submitted that he
may be granted 6 months' time to remove the encroachment so that in the
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meantime he may make alternative arrangements.
11. Considered the submissions made by counsel for appellant.
The appellant has no right to encroach upon public land .
12. Appellant could not point out any of his rights to construct
staircase over public land. Therefore, this court is of the considered opinion
that no substantial question of law arises in the present appeal. However,
counsel for appellant submits that he may be granted 6 months' time to
remove encroachment so that in the meantime he may make some alternative
arrangements.
13. Although respondent has opposed the aforesaid prayer, but looking
to the possible inconvenience which may be caused to appellant, it is directed
that appellant shall demolish his encroachment within a period of 6 months
from today, failing which he shall be liable for contempt of this Court.
14. With aforesaid directions, judgment and decree dated 08.08.2024
passed by III District Judge, Guna (M.P.) in RCA No.15/2023 and judgment
and decree dated 13.01.2023 passed by III Civil Judge, Senior Division,
Guna (M.P.) in Civil Suit No.281A/2017 are hereby affirmed.
15. Accordingly, appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
