DAYAKISHAN Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) The appellant herein has approached this court by way of the instant second appeal for assailing the judgment and decree dated 23.07.2018 passed by the Additional District Judge, Bhadra in Civil Regular Appeal No. 7/2015, whereby, the appellate court affirmed the judgment and decree dated 21.11.2015 passed by the Civil Judge, Bhadra in Civil Original Case No. 107/2013 (41/2003).

(2.) Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. The appellant and co-plaintiff respondents Nos. 2, 3 and 4 (who have not challenged the appellate court 's judgment) filed a suit for permanent injunction in the court below stating therein that 14 shops were constructed by Mahila Bal Kalyan Kendra in Ward No. 15 near Murti Chowk of Kasba Bhadra and the plaintiffs, namely, Pawan Kumar, Rajendra Khadriya, Govind and Dayakishan, were given one shop each on rent. They were regularly paying rent to Mahila Bal Kalyan Kendra. The patta of the land was issued by the Nagar Palika, Bhadra to Mahila Bal Kalyan Kendra in the year 1973. To the north of the shops, a chunk of land was set apart by the Nagar Palika Bhadra in the year 1957 for public utility and was inaugurated by the then Chief Minister of Rajasthan Mr. Mohan Lal Sukhadiya. Some time later, a school for providing free education to the children was constructed on the western part of this land, which was known by the name Goliya School. The school went into disuse and the building deteriorated by wear and tear. The plaintiffs claimed that the eastern part of the land allotted to Mahila Bal Kalyan Kendra was being used by them and other residents of Bhadra as children 's playground, for holding marriages and Ramleelas etc. This public place was also located towards the north of the shops of the plaintiffs and they had opened channels for drainage of rain water etc. towards this public land. Windows and ventilators etc. had also been opened towards the north side so that the shopkeepers could take the benefit of fresh air and sunlight etc. Pleading thus, the plaintiffs claimed that they had easementary right over this public land located to the north of their shops which were all south facing. They alleged that the Executive Officer and Chairperson of the Municipality developed a malafide motive and published auction notices in Dainik Bhaskar newspaper on 11.08.2003, 13.08.2003 and 14.08.2003 for the construction of 49 shops on this land of public utility, on which the plaintiffs had easementary rights. They filed the suit for restraining the respondents from selling the land so as to raise the shops in question.

(3.) A written statement was filed by the Municipality, Bhadra denying the averments made in the plaint. A specific assertion was made in the written statement that the plaintiffs had encroached upon and had transgressed on 15 feet of public land comprising the main road. A 15 feet wide strip of land was lying vacant behind the shops. The land located to the north of the shops in question was not a land of public use, but was the land owned by the Municipality. The school had been shut down prior to 1975 itself and the State Government had transferred the land to the Municipality in the year 1975. The Municipality was in possession thereof and a boundary wall had been constructed thereupon. The land was never set apart for public use and on the contrary, the people were misusing the same by throwing garbage thereupon. The shopkeepers had illegally constructed Jharokhas and took out the rain water drains towards the north of their shops and their demand of easementary rights was not tenable on the land belonging to the Municipality. The land in question was a Nazool property of Municipality, which was being auctioned in a legal manner after taking permission from the State Government, Town Planner and the other concerned departments.