1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1042   OF 2011

[Arising out of SLP (C) No. 35813 of 2009]

HARI RAM ….Appellant

Versus

JYOTI  

PRASAD  &  

ANR.

...

Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. By this judgment and order, we propose to dispose of the  

aforesaid  appeal  which  is  filed  by  the  appellant  herein  after  

being aggrieved by the judgment and order passed by the High Court

2 in RSA No. 2698 of 2008 affirming the judgment and decree passed  

by  the  trial  Court  in  Civil  Suit  No.  160  of  2003  which  was  

affirmed by the First Appellate Court in Civil Appeal No. 92 of  

2007.  These  facts,  therefore,  make  it  crystal  clear  that  the  

present appeal is directed against the concurrent findings of fact  

of the High Court, the first Appellate Court i.e. the judgment of  

the Additional District Judge and the trial court which was the  

Court of Civil Judge (Junior Division).

3. In  

order  to  

appreciate the contentions raised before us by the learned counsel  

appearing for the appellant, it would be necessary to set out  

certain basic facts leading to filing of the present appeal.   

4. The suit was filed by the respondent herein contending inter  

alia that all the six persons including respondent No. 1 have  

their  common  interest  in  the  disputed  street  alongwith  co-

inhabitants of the same area.  It was stated that the residential

3 houses  of  the  respondents  are  falling  in  the  site  plan  which  

indicates that there is a common street for ingress and egress of  

the general public.  It was alleged in the plaint that earlier Bal  

Kishan Dass who was examined as PW-4 was the original owner of the  

entire area out of which he curved out a colony selling plots in  

favour of various parties.  It was also stated in the plaint that  

at that time itself a 10 feet wide public street was left on the  

ground as detailed in the site plan for the common use of all the  

plot  

holders  

of  the  

colony,  

but  

further  

allegation  was  that  the  appellant/defendant  from  the  time  of  

possession of his plot had evil eye on the aforesaid disputed  

street and the defendant No. 1 and he namely defendant No. 2  

encroached upon substantial part of the same making the street  

narrowed  down  causing  inconvenience  to  the  users  of  the  said  

street. Incidentally the suit was filed invoking Order I Rule 8 of  

Code of Civil Procedure [called in short ‘C.P.C.’].

4 5. In  the  plaint  it  was  further  stated  that  earlier  the  

respondent No. 1 as complainant filed a complaint under Section  

133  of  the  Code  of  Criminal  Procedure,  1973  (for  short  “the  

Cr.P.C.”) which was decided in favour of the plaintiff/respondent  

No. 1 and the said judgment was passed by the SDM.

6. When the matter was challenged before the Punjab and Haryana  

High Court, the High Court held that the matter which is agitated  

relates  

to  

disputed  

facts  and  

therefore  

requires  

evidence  

and  that  

the  

dispute  

between the parties could only be effectively decided if a civil  

suit  is  filed.   As  the  High  Court  had  held  that  the  dispute  

between  the  parties  would  be  decided  by  filing  a  civil  suit,  

consequently the aforesaid plaint was filed in the Court of Civil  

Judge (Junior Division) which was registered as Civil Suit No. 160  

of 2003.

5 7. Defendant Nos. 1 and the present appellant as defendant No. 2  

filed a combined written statement raising objections regarding  

the maintainability of the suit and also with regard to the merit  

of the contentions raised in the plaint.   On the basis of the  

pleadings of the parties, four issues were framed by the trial  

court to the following effect:

1.  Whether the defendants have made illegal / unauthorized  construction  over  the  public  street  by  way  of  illegal  encroachment as shown in red colour in the attached site  

plan shown by letters ABCD situated at village Matlauda,  Distt. Panipat ? OPP.

2.In case issue No. 1 is decided in favour of plaintiff,  then whether plaintiff is also entitled to injunction, as  prayed for?  OPP.

3.Whether suit filed by the plaintiff is not maintainable  in the present form? OPD.

4.Relief.

8. To  substantiate  his  case,  the  plaintiff/respondent  No.  1

6 examined  8  witnesses  and  produced  some  documents  whereas  the  

present appellant as defendant No. 2 examined himself as DW-1 as a  

sole witness. After recording the evidence adduced by the parties  

the learned Civil Judge (Junior Division) heard the parties and  

thereafter by a judgment and decree dated 6.12.2007 decreed the  

suit and a permanent injunction was issued directing the removal  

of unauthorized construction from the ground as shown in the site  

plan.  Since, the defendant No. 1 had already removed his portion  

of  

illegal  

construction, the present appellant was given one month’s time to  

remove all such constructions failing which respondent No. 1 was  

given their legal right to get the said construction removed on  

his  own  expenses  which  was  allowed  to  be  recovered  from  the  

defendants.    The defendants were further restrained from raising  

any further construction in future on the aforesaid 10 feet Rasta  

as detailed in PW – 7A.

7 9. Being aggrieved by the aforesaid judgment and order passed by  

the  trial  court,  an  appeal  was  filed  before  the  Additional  

District Judge, Panipat whereas the appeal was registered as Civil  

Appeal No. 92 of 2007.  The aforesaid appeal was heard by the  

Additional District Judge who by his judgment and decree dated  

25.7.2008  dismissed  the  appeal  filed  by  the  appellant.  

Thereafter, the appellant filed a second appeal before the Punjab  

and Haryana High Court which was registered as RSA No. 2698 of  

2008.

10. By  a  

judgment  

and  

decree  

dated  

31.7.2009, the aforesaid appeal was also dismissed by the High  

Court holding that there is no specific question of law involved  

in the aforesaid appeal.     

11. Being still aggrieved, the present appeal was filed by the  

appellant  herein  in  which  notice  was  issued  and  on  service  

thereof, we heard the learned counsel appearing for the parties.

8 12. Mr. Anoop G. Choudhary, learned Senior Counsel appearing for  

the appellant very forcefully argued that none of the judgments  

and  decrees  passed  by  the  courts  below  is  justified.    He  

submitted  that  the  suit  itself  was  barred  by  limitation  but  

despite the said fact and despite the fact that a specific stand  

was taken in the written statement contending that the suit is  

barred by limitation, no such issue was framed by the trial Court  

and no decision was rendered by the trial court as also by the  

appellate  

Court  on  

the  said  

issue  and  

that  the  

High  

Court  was  

not  

justified  

in  

dismissing the plea raised by the appellant on the ground that the  

cause of action is a continuing cause of action and, therefore, it  

cannot be said that the suit is barred by limitation.  His second  

contention was that there could and should have been no finding  

regarding the encroachment made by the appellant in absence of  

production of any official document to indicate that there was in  

fact  a  public  street  used  by  the  residents  of  the  area.   He

9 submitted that no evidence has been led to prove and establish  

that it was a public street on which encroachment was made by the  

appellant. His last submission was that the suit was said to be in  

representative capacity as shown in the plaint but the formalities  

for instituting a case i.e. representative suit was not followed  

and therefore the suit should have been dismissed at the very  

threshold itself.

13. The  

aforesaid  

submissions  of  the  learned  senior  counsel  appearing  for  the  

appellant were refuted by the learned counsel appearing for the  

respondents  who  placed  before  us  the  findings  recorded  by  the  

three courts below and relying on the same, it was submitted that  

the present appeal has no merit at all.    

14. In the  light of  the aforesaid  submissions of  the counsel  

appearing  for  the  parties,  we  also  perused  the  records  very

10 carefully.   We would first deal with the plea of limitation as  

raised before us by the appellant.     

15. The records placed before us do disclose that the appellant  

in his written statement took up a plea that the suit is barred by  

limitation. However, despite the said fact no issue was framed nor  

any grievance was made by the appellant for non-framing of an  

issue of limitation.

16. On  

going  

through  

the  

records,  

we do not  

find  that  

the  

appellant  

has made any submission before the trial court as also before the  

first appellate court regarding the plea of limitation.   Such a  

plea is seen to have been made before the High Court.    The said  

plea which was made before the High Court was considered at length  

by the High Court and the High Court held that although such a  

plea was not raised either before the trial court or before the  

appellate court, the same could be raised before the High Court in

11 view of the provisions of Section 3 of the Limitation Act which  

places an obligation upon the Court to discuss and consider such a  

plea despite the fact that no such plea was raised and argued  

before the Trial Court as also before the First Appellate Court.  

17. The High Court after considering the aforesaid plea held that  

the  suit  cannot  be  said  to  be  barred  by  limitation  as  an  

encroachment  on  a  public  street  is  a  continuing  wrong  and  

therefore,  there  exists  a  continuing  cause  of  action.    The  

records disclose that initially a complaint under Section 133 of  

Cr.PC was filed which was pursued with all sincerity upto the High  

Court.  But  the  High  Court  held  that  the  dispute  between  the  

parties could be better resolved if a proper civil suit is filed  

and when evidence is led with regard to the disputed questions of  

fact.   We find from the records that immediately thereafter the  

aforesaid  suit  was  filed  seeking  issuance  of  a  mandatory

12 injunction. In view of the aforesaid facts and also in view of the  

fact that encroachment on a public street by any person is a  

continuing  cause  of  action,  we  find  no  merit  in  the  said  

contention.  

18. Any act of encroachment is a wrong committed by the doer.  

Such  an  encroachment  when  made  to  a  public  property  like  

encroachment to public road would be a graver wrong, as such wrong  

prejudicially affects a number of people and therefore is a public  

wrong.  So long any obstruction or obstacle is created to free and  

unhindered  access  and  movement  in  the  road,  the  wrongful  act  

continues thereby preventing the persons to use the public road  

freely and unhindered. Therefore, that being a continuing source  

of wrong and injury, cause of action is created as long as such  

injury  continues  and  as  long  as  the  doer  is  responsible  for  

causing such injury.

13

19. At this stage it would be apposite to refer to and rely upon  

Section 22 of the Limitation Act, 1963, which reads as follows:

“In case of a continuing breach of contract or in  case  of  a  continuing  tort,  a  fresh  period  of  limitation begins to run at every moment of the time  during which the breach or the tort, as the case may  be, continues.”  

This  court  had  the  occasion  to  deal  with  Section  22  of  the  

Limitation Act, 1963, in the case of Sankar Dastidar v. Shrimati  

Banjula Dastidar and Anr reported in AIR 2007 SC 514, in which the  

Supreme Court held that when a right of way is claimed whether  

public or private over a certain land over which the tort-feaser  

has no right of possession, the breaches would be continuing, to  

which the provisions of Section 22 of the Limitation Act, 1963,  

would apply. Therefore, in our considered opinion the plea that  

the suit is barred by limitation has no merit at all.

14

20. The next plea which was raised and argued vehemently by the  

learned senior counsel appearing for the appellant was that the  

suit was bad for non-compliance of the provisions of Order I Rule  

8 of the CPC. The said submission is also found to be without any  

merit as apart from being a representative suit, the suit was  

filed by an aggrieved person whose right to use public street of  

10 feet width was prejudicially affected.  Since affected person  

himself  

has  filed  

a  suit,  

therefore, the suit cannot be dismissed on the ground of alleged  

non-compliance of the provisions of Order I Rule 8 of the CPC.

21. In this connection, we may appropriately refer to a judgment  

of  the  Supreme  in  Kalyan  Singh,  London  Trained  Cutter,  Johri  

Bazar, Jaipur Vs. Smt. Chhoti and Ors. reported in AIR 1990 SC  

396.  In paragraph 13 of the said judgment, this Court has held  

that suit could be instituted by representative of a particular

15 community but that by itself was not sufficient to constitute the  

suit as representative suit inasmuch as for a representative suit,  

the  permission  of  Court  under  Order  I  Rule  8  of  the  CPC  is  

mandatory.

22. In paragraph 14 of the said judgment, it was also held that  

any member of a community may successfully bring a suit to assert  

his  right  in  the  community  property  or  for  protecting  such  

property  

by  

seeking  

removal  

of  

encroachment therefrom and that in such a suit he need not comply  

with the requirements of Order I Rule 8 CPC.  It was further held  

in the said case that the suit against alleged trespass even if it  

was not a representative suit on behalf of the community could be  

a suit of this category.

16 23. In that view of the matter and in the light of the aforesaid  

legal position laid down by this Court, we hold that the suit  

filed by the plaintiff/respondent No. 1 was maintainable.

24. According to the appellant no official document was placed  

and no official witness was examined to prove and establish that  

the suit land was a public street in which encroachment is made by  

the appellant.  At this stage it would be appropriate to mention  

that  the  

suit  was  

initially  

instituted  against  two  defendants  namely  defendant  No.  1  and  

defendant No. 2.   The appellant herein was defendant No. 2 in the  

said suit.  So far as defendant No. 1 is concerned, the records  

disclose that the Panchayat of the area took a decision that both  

of them have encroached upon a public property and the street and  

therefore they should remove the encroachment.  It is disclosed  

from the records that pursuant to the aforesaid decision of the  

Panchayat,  the  defendant  No.  1  removed  his  encroachment  after

17 admitting that he had also encroached upon some area of the 10  

feet wide street which fact he admitted before the panchayat and  

later on he removed the said encroachment. The aforesaid fact is  

established from the statements of PW-1. Jyoti Parshad, PW-5 -  

Sadhu Ram and PW-6 - Ram Pal who were present and participated in  

the said Panchayat also corroborated the said admission before the  

Panchayat.

25.

Besides,  

in  all  8  

witnesses  

were  

examined  

by  the  

plaintiff  

respondent No. 1.  PW-3, Dharam Singh Patwari who was examined in  

the suit proved the report of the BDO who had visited the disputed  

property  on  18.1.1995  after  which  he  also  submitted  a  report  

certifying that an encroachment has been made by the appellant  

over the disputed street.  Bal Kishan Dass who was also examined  

as PW-4 had specifically stated in his evidence that he had carved  

out a colony in the year 1981-82 and he had sold the plots to the  

plaintiff  as  well  as  defendants  and  other  inhabitants  of  the

18 village  and  towards  eastern  side  of  the  plot  of  the  

defendant/appellant he had left a street of 10 feet width.

26. As against the aforesaid evidence adduced on behalf of the  

plaintiff/respondent No. 1, the appellant examined himself as DW-1  

wherein he only took a stand that disputed property is not a part  

of  the  street  and  that  after  purchasing  the  plot  he  had  

constructed the house and despite the said fact no objection was  

taken  and  

therefore  

it  cannot  

be  said  

that  he  

had  

constructed a house also on a part of the said disputed suit  

property.

27. On  appreciation  of  the  aforesaid  evidence,  all  the  three  

courts namely the High Court, the First Appellate Court as also  

the trial court held that the aforesaid disputed suit land is a  

part of the public street where the appellant has encroached upon  

by constructing a part of the house. The aforesaid findings are

19 therefore findings of fact.  Public Officer namely Patwari was  

examined who had proved the report submitted by the BDO stating  

that part of the suit property is a public street.

28. Ext. PW-7A filed by the plaintiff/respondent is a site plan  

which proves and establishes that there is a public street of 10  

feet width.  In all the sale deeds of the area as disclosed from  

the statement of PW-4 Bal Kishan Dass, the aforesaid street of 10  

feet  

width  is  

shown  and  

the  

aforesaid  

evidence  

go  

unrebutted. Thus there exists a street of 10 feet width.   It is  

also proved from the evidence on record that the appellant has  

encroached  upon  the  suit  property  consisting  of  the  aforesaid  

street of 10 feet width.   That being the position, we find no  

infirmity in the judgment and decree passed by the Trial Court and  

affirmed by the First Appellate Court and by the High Court in the  

Second Appeal.

20 29. We,  therefore,  find  no  merit  in  this  appeal  which  is  

dismissed with costs, which is assessed by us at Rs. 10,000/-.  

The  decree  passed  by  the  trial  court  is  confirmed.  If  the  

appellant fails to vacate and remove the unauthorized encroachment  

within a period of 60 days from today, it will be open for the  

plaintiff/respondent  No.  1  to  get  the  decree  executed  in  

accordance with law.

30.   In  

terms  of  

the  

aforesaid  

observations and directions, the appeal is dismissed.

........................J                     [Dr. Mukundakam Sharma]

........................J  [Anil R. Dave] New Delhi January 27, 2011