RAM PRASAD BHATT Vs. GAYA MUNICIPALITY

JUDGEMENT

(1.) This is an appeal by the plaintiff. He has a double storeyed house, bearing holding No. 34, by the side of Haliday Road, now named as Krishna Prakash Road, is the town of Gaya. There is a Strip of land, bearing Municipal survey plot No, 11459, adjacent north of the Haliday Road. This strip of land is divided into three portions. The land just abutting the house of the plaintiff is an open space, and to the north of this space are municipal stalls Nos. 12 to 14. Stall No. 14 is situated in the extreme west, and in this stall defendant No. 2 who is a settlee from the Gaya Municipality has his shop and a tea-stall. To the south of the stalls there is a footpath which forms part of the said Haliday Road. It appears that, in the year 1941, the municipality proposed to settle the above strip of land, and the plaintiff's predecessor-in-interest, Bitan Pandey, filed a title suit, No. 66 of 1941, for a declaration that the above strip of land was the road-side land and the municipality had no right to settle the same. A prayer for ad interim injunction, restraining the defendant municipality from making any transfer of the land, was also made, which was ultimately rejected at the final hearing. It further appears that, after the prayer for ad interim injunction was rejected, the municipality in the year 1942, constructed the above stalls, and thereafter the plaintiff of that title suit allowed the same to be dismissed for default. Thereafter, the construction of the stalls was completed, and one of them was settled with defendant No. 2, who, as already stated, is holding his shop and a tea-stall in the same. There was a further agreement between the municipality and the defendant No. 2 whereby the latter was permitted to construct a second storey over the above stall, and he did construct the same. The plaintiff, there fore, instituted the suit, out of which the present appeal arises, for a declaration that the entire strip of land, bearing municipal survey plot No, 11459, is the road-side land and the defendants had no right to construct stalls thereon. The case of the plaintiff further was that by construction of the stalls, his right of access to the Haliday Road has been infringed and the frontage of his house also has suffered because of the stalls. He further claimed that his privacy as well as the use of light and air has also been seriously infringed.

(2.) The municipality, defendant No. 1, as well as its settlee, the defendant No. 2, filed separate written statements, but their pleas were practically the same. It was contended on their behalf that the land in question was not the road-side land, and that it was always meant for shops and stalls, and was never used as passage, as claimed by the plaintiff. It was further raised in defence that, In view of the dismissal of the previous title suit. No. 66 of 1941, for default, this suit was barred under the provision of Order 9, Rule 9, of the C. P. C.

(3.) The trial Court held that the plot in question is the road-side land to be used strictly and solely for the purpose of the road, and for no other purposes, and that the municipality had no right to construct the stalls thereon. It also held that the plaintiff, as the owner of a house standing on that road, has the right of access to the main road through the plot in question and the municipality by putting up stalls Nos. 12 to 14, has infringed his right of access. It further held that the frontage of the plaintiff's house also suffers because of the stalls, and the stalls are thus a serious source of grievance to the plaintiff on grounds of access and frontage. With respect to the claim of the plaintiff in regard to the infringement of his rights of privacy, air and light, the trial Court negatived the contention of the plaintiff, and held that there was no infringement of the above rights. On the question of law, it held that the suit was barred under Order IX, Rule 9, of the C. P. C., and, therefore it dismissed the suit. In appeal by the plaintiff, the finding with regard to infringement of the plaintiff's rights of access and frontage was not challenged, and, similarly, the finding of the trial Court negativing the contention of the plaintiff about the infringement of his rights of privacy, air and light was also not challenged. The only point that was raised on behalf of the plaintiff appellant in the Court of appeal below was that the suit was not barred by Order IX, Rule 9, of the C. P. C., and that raised by the defendants respondents was that the plot in question was not the road-side land. Both the contentions were rejected, and the lower appellate Court held that the plot in question was the road-side land, but the suit was barred under Order IX, Rule 9, of the C. P. C. The appeal of the plaintiff was therefore, dismissed.