KISHORILAL Vs. LADHURAM

JUDGEMENT

(1.) THESE 6 petitions for leave to appeal to the Supreme Court are directed against a common judgement of a Division Bench of this Court dated 21-9-71 and can be conveniently disposed of together.

(2.) BRIEFLY stated the circumstances giving rise to the petitions are these : In the Dhan Mandi area of the town of Ganganagar there is a road leading from the Kotwali to the Lakkar Mandi known as Kotwali Road. At its right angle towards the west is the Dharmshala Road. Both these are public roads and highways. The width of these roads is 50 feet. Some 25 or 30 years before the institution of suits the Municipality of Ganganagar let out substantial portion of these public roads to various persons on 'tehbazari' basis permitting them to put up temporary wooden stalls as shops. In between the stalls and the properties of the plaintiffs in the original suits there is narrow strip of land measuring between 2 and 3 feet. The Tehbazari stalls virtually cover the properties of the plaintiffs abutting the two roads. The Rajasthan Government directed the Municipality of Ganganagar in September 1952 for the restoration of the Kotwali Road by removing these stalls. The stall-holders instituted a suit for the issue of an injunction against their impending eviction and it was dismissed in 1956. The Municipality did not take any steps to evict the stall-holders and therefore the plaintiffs instituted several suits but we are only concerned at present regarding suits Nos. 157/60,75/57 and 200/62, whereby the legality of the obstruction on the public highway was challenged by the plaintiffs and they prayed for perpetual injunction and also for the issue of a mandatory injunction for the removal of the obstruction. The suits were decreed by the trial court. In first appeal the District Judges took divergent views but in the second appeal a single Judge of this Court maintained the order of the trial court. Four special appeals were preferred, namely, 20 66, 21/66, 29/66 and 32 66 and they were decided by the Division Bench together. The learned Judges held that it was not open to the Municipality to convert a part of the public highway into a Bazar; that the bye laws could not permit what was not permitted by the Act; that the Rajasthan Town Municipalities Act ordained that the Municipal Board, was a trustee of the highway; that the side lanes were also a part of the highway; that the suit for public nuisance was maintainable without proving any damage; that no question of dispossession or ouster of the plaintiffs from any part of the public street could arise as they had no right of possession over the public street; that the stall-holders did not claim adversely to the Municipality and that they were in possession of the parts of public street on the basis of Tehbazari from the Municipality; that the plaintiffs in these circumstances had a continuing cause of action and that their suit could not be barred by time so long as the wrong continued and there was no question of application of sec. 28 of the Limitation Act and upheld the decision of the learned single Judge. The Municipal Council, Sri Ganganagar and the stallholders have asked us to grant them leave for appeal to the Supreme Court.

(3.) AT the fag end of the arguments an application was moved by Mr. Vyas that the number of shops involved in petition No. 5/72 is 8; in petition No. 172 in 3 and petition No. 60/71 involves 9 shops, and because the cases relating to all these 20 shops have been decided by a common judgment for the purposes of valuation for leave to appeal to the Supreme Court they may be consolidated under order 45 rule 4 C. P. C. and thus the value would exceed Rs. 20,000/ -. It was also prayed that after the consolidation is ordered the dispute of valuation may be determined under O. 45 r. 5 C. P. C. For the purposes of consolidation having regard to the language of r. 4 of O. 45 C. P. C. it applies to those cases where the suits have been decided by a common judgment. The rule will have no application to a case of appeals disposed of by the same judgment because a common question of law arose in the cases. This is the view taken in Firm Kishorilal Jagannath Prasad vs. Firm Murlidhar Banwarilal (8) to which one of us was a party. In any case the applications for leave to appeal were presented on 2-12-71 and this application was moved on 12-4-72 after the arguments had practically concluded. The application is dismissed.