MUNICIPAL BOARD Vs. SUKH DEO PRASAD

JUDGEMENT

(1.) IN this defendant's second appeal the substantial questions of law on which the appeal was admitted were whether in the circumstances of the case the suit was barred by limitation, Order II rule 2 C. P. C., and estoppel and acquiescence. IN respect of last plea it has been found by lower appellate Court that the defendant never pleaded it. It is well established that a plea of estoppel and acquiescence is primarily a question of fact and unless it is pleaded, it cannot be adjudicated. The finding recorded by the two courts below appears to be well founded.

(2.) AS regards plea of limitation, learned counsel for appellant relied on Bala Krishna v. Sri Dhaneshwar Maharaj Sansthan, AIR 1959 SC 798. It is urged that the injury resulted in 1956, therefore, the present suit filed in 1976 was barred by Section 23 of the Indian Limitation Act. For deciding this controversy it is necessary to mention certain facts. It is not disputed that in front of Gher of plaintiff the shops in dispute had been constructed by Municipal Board which has caused obstruction to his right of frontage and passage. It is further not disputed that the plaintiff after purchasing a Gher approached the Municipal Board for removal of these constructions as it was an obstruction and in 1965 the Municipal Board did pass a resolution to provide 10 feet passage but as it was not implemented therefore, a suit was filed in 1969 which was decreed and two of the shops were demolished. The present suit was filed as the other shops obstructed the right of plaintiff's frontage. It has been found by the two courts below that the constructions do obstruct plaintiff's frontage and, therefore, it was a breach or a tort which continued from day it was committed till the date the suit was filed. It was on this basis that the lower appellate court held that the suit was not barred in view of Section 22 of the Indian Limitation Act. It placed reliance on Mst. Masooma Bibi v. Mohd. Said Khan, 1941 AWR 376 that an obstruction to a right of way is a continuing wrong. Even in the Supreme Court decision it has been held that wrongful act complained off should amount to ouster. It cannot be disputed that in this case the action of Municipal Board in constructing the shops did not amount to an ouster. It was not on the land of the plaintiffs. It was the right of frontage or right of passage which was interfered and the breach was committed in that regard. It was urged by learned counsel for appellant that ouster may arise by hindrance and prevention also. Reliance was placed on dictionary meaning of 'ouster' in Webster. The concept of ouster is associated with exclusion. It involves some overtact. Ouster and prevention cannot be considered to be one and the same thing. In this case by raising the construction Municipal Board prevented the plaintiffs from using the passage or from using the right of frontage. It was not a case of ouster but prevention. The principle laid down by Supreme Court is not applicable to the facts of the present case. Further it was observed by Hon'ble Supreme Court at page 807 : "If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong.'' The raising of constructions by Municipal Board on the facts found and even on the arguments advanced by learned counsel for appellant was a wrongful act. The injury caused by it was that the plaintiff was prevented from using its frontage. This injury which started with the raising of constructions did not come to an end with its completion. It continues even today. It was, therefore, a continuing wrong and the plaintiffs had right to file the suit and it cannot be held to be barred by limitation.

(3.) IN the result both the appeal and cross-objection are dismissed. Parties shall bear their own costs. The stay order dated 23.4.1980 is discharged. The appellant shall comply with the direction issued by this Court on the undertaking given by learned counsel for appellant that it shall comply with the decree passed by the Courts below within one month of the dismissal of the appeal. Appeal dismissed.