KESARI MAL KHATRI Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the appellate judgment of the learned Senior Civil Judge No. 1Jodhpur dated August 29, 1967 by which he set aside the judgment and decree of the Munsif, Jaisalmer, dated September 23, 1964 passed in Civil Original Suit No. 51 of 1962 and dismissed the suit of the plaintiff -appellant with costs

(2.) THE facts giving rise to this appeal may be briefly noticed. The plaintiff -appellant owns a house situate in ward No. 6 at Jaisalmer, the description of which is given in pare 1 of the plaint. The case of the plaintiff -appellant as disclosed in the plaint is that in from of the house there existed a 'chabutri' measuring 6' long& 3' wide and this 'Chabutri' extended upto the shop of one Hazarimal son of Khubchand. The measurement of the chabutri as it existed at the time of the institution of the suit was 2' 4' long and 3' wide According to the plaintiff, this Chabutri was part of the plaintiff's house described in para 1 of the plaint and he has been in continuous possession of this chabutri as owner since generations There are steps on this chabutri which are being used for ingress and egress of the plain tiff -appellant The plaintiff appellant goes on to state that his neighbors Hajarimal applied to the Municipality, Jaywalkers, for permission, to reconstruct his shop. While asking for per mission, Hajarimal also applied for grant of permission to open a door abutting this chabutri. Thereupon, the plaintiff -appellant filed objection. The objection preferred by the plaintiff was decided by the Municipality on June 27, 1957 and Hajarimal was refused permission to open door on the plaintiff's chabutri. At that time, the Municipality directed the plaintiff to keep this chabutri in the line of the 'Jangala' of Hajarimal by reducing the size. This direction is contained in the notice Ex 2 dated June 27 1957. In compliance with this notice/order, the plaintiff reduced the size of his chabutri from 6' x 3' to 2' 4' x 3'. The case of the plaintiff is that while doing so, he had to repair the remaining portion of the chabutri. When he was repairing the remaining portion of the chabutri, a complaint was made to the Municipality that the plaintiff was constructing a new chabutri. The Secretary Municipality, inspected the site on August 12, 1960 end made a report dated August 12, 1860 to the effect that the chabutri ha* been constructed in accordance with the decision of the Municipality and it has not been extended nor is there any obstruction created in the way nor any of the houses of the neighbours have been harmed. The Municipal Board did not accept the report of the Secretary and ordered demolition of the Chabutri on December 24, 1960. It may be mentioned here that in the order dated December 24, 1960, it has been written: .........[vernacular ommited text]........... According to the plaintiff, this resolution dated 24 -10 -1960 of the Municipality was mala fide and without authority. The plaintiff preferred an appeal against that resolution (order) but that appeal, however, was dismissed on September 20, 1962. Hence, the plaintiff has instituted this suit against the Municipal Board, Jaisalmer on November 9, 1962, and prayed that a permanent prohibitory injunction be issued against the defendant Municipal Board Jaisalmer, restraining it from demolishing the disputed chabutri. The suit was contested by the Municipal Board on various grounds. The principal pleas taken by the Municipal Board in the written statement are:

(3.) I have examined the rival contentions of the parties and having bestowed my thoughtful consideration to them, I have reached the conclusion that the appeal is devoid of force. It may be stated at the risk of repetition that in para 11 of the plaint, the plaintiff -appellant has clearly averred that the chabutri in dispute is a part of his house and as owner of this chabutri, he has been in possession of it for generations. These averments have been specifically denied by the defendant respondent in para 11 of the written statement. The assertion and denial made by the plaintiff -appellant and the defendant respondent was the subject of issue No. 1, the burden of which was placed on the plaintiff appellant. The learned Munsif of course, decided was issue in favour of the plaintiff but the learned Judge of the lower appellate court having regard to the averments made in the plaint and the evidence placed on record, observed that the plaintiff has neither alleged nor proved any act or user to prove his possessors title and that there is no title deed in respect of the chabutri (ota) which may go to prove the ownership of the plaintiff -appellant. After noticing the statements of PW 2 Satyadev, PW 3 Gambhirmal, PW 4 Takhatmal and PW 5 Partapmal, he opined that the plaintiff may be in possession of the chabutri but from their evidence, it is not clear as to in what manner he is in possession of it. Learned Counsel for the defendant respondent is right in his submission that this finding being based on appreciation of evidence, is not open to challenge in the second appeal. As measure of abundant caution at the instance of the learned Counsel for defendant -respondent, I have gone through the statements of the aforesaid witnesses and am satisfied that correct inference has been drawn by the learned Judge of the lower appellate court. The unavoidable conclusion that follows is that the chabutri is not of the plaintiff's ownership. The learned Judge of the lower appellant court after discussing the evidence of the plaintiff and that of DW 2 Ghunnilal, DW 3 Kanhaiyalal and DW 4 Hajarimal, held that the plaintiff constructed pacca ota in place of the kutcha one in 1960 without giving any notice to Municipality and obtaining its permission and repelled the contention of the plaintiff that he has simply repaired it as a portion of it was got removed by the defendant respondent. Admittedly, no pretension was obtained by the plaintiff -appellant from the defendant -respondent for constructing the disputed chabutri pacca in place of kutcha. Building has been defined in Section 3(3) of the Act It means, amongst others, a house and includes inter alia fixed platforms, projections, door steps and staircases of whatever material constructed. Section 166 of the Act provides for setting back projecting buildings. Sub -section (2) there of reads as under, 166(2) If any land not vested in the Board, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building other than a platform, verandah, step or other external structure, the Board, after the owner of the land not less than fifteen clear days written the notice of its intention, or it the land is vested in the State Government, then with the permission in writing of such officer, as may be appointed or authorized by the State Government in this behalf, may take possession of the said land with its enclosing wall, hedge or fence, if any, and if necessary, clear the same; and land so acquired shall thenceforward be deemed a part of the public street and be vested in the Board. Section 170 contains provisions relating to erection of buildings. Sub -section (1) of Section 170 is material for the present purpose and it is reproduced, - 170. Provisions relating to erection of building, - (1) Before beginning within the limits of the Municipality -