Gobind Ram vs Nihal Chand and Another

P.D. Sharma, J.—This Letters Patent Appeal against the judgment and decree of the learned Single Judge has arisen out of the following circumstances :

The Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act transferred house bearing Nos. 6148/A, 5-1, and 5-2, bounded on two sides by Municipal drains and situate in Ambala Cantonment, on 18th July, 1958, with effect from 1st November, 1954, in favour of Nihal Chand plaintiff. The drains on both the sides of the house are covered by concrete work, reference plan Exhibit P. 3. Gobind Ram defendant is in occupation of a wooden stall constructed in front of the plaintiff''s house on the site facing Nicholson Road. The area of the said stall is 10'' x 6''. The District Rent and Managing Officer, Ambala, who was managing this house under the provisions of the aforesaid Act before the same was transferred in favour of the plaintiff, informed him on 6th July, 1960, in response to his letter dated 20th June, I960, that Gobind Ram defendant was an unauthorised occupant of the stall and that Rs. 360/- were still due from him as rent thereof. The Executive Officer of the Cantonment Board, Ambala Cantonment, in response to the plaintiff''s application dated 28th February, 1960, informed him on 17th June, 1-00, that Gobind Ram was not paying teh bazari for the wooden structure on his thara, although he had been allowed to occupy the two adjoining parcels of land, 9'' x 7'' and 10'' x 7.'' in area, on tehbazari basis. These parcels of land are also shown in plan Exhibit P. 3. The Executive officer further informed him that he would not be in a position to help him in his private dispute with the defendant. Thereupon the plaintiff instituted this suit in the Court of the Subordinate Judge First Class, Ambala, for possession of the site ABCD on a part of which the wooden stall was located, reference plan Exhibit P. 3, and for recovery of Rs. 360/- at the rate of 10/ per mensem from 1st July, 1957, to 30th June, 19. 0, by way of damages for use and occupation thereof, against the defendant on the allegations that the same belonged to him and that the defendant had unlawfully occupied it. and had also constructed a wooden stall without his permission.

The defendant pleaded that the plaintiff was not owner of the site in dispute and that he and one Hukam Chand had been in possession of the stand for the last so many years.

On the pleadings of the parties the following issues were framed :

(1) Whether the site in question is a part of the house property of the plaintiff ?

(2) To what amount of compensation is the plaintiff entitled on account of use and occupation of the site in question by the defendant and at what rate ?

(3) Relief.

Issue No. 1 was decided in favour of the plaintiff. As regards issue No, 2, it was observed that the plaintiff was entitled to claim Rs. 10/- per month as mesne profits from the defendant. As a result the plaintiff''s suit was decreed with costs. The defendant felt aggrieved from the above judgment and decree and tiled an appeal which the learned District Judge allowed and dismissed the plaintiffs suit with costs in his Court. He found that the site ABCD did not vest in the plaintiff and the it he could at the most claim Rs. 5/- per mensem as mesne profits. The plaintiff was not satisfied with the judgment and decree of the first appellate Court an i preferred an appeal which came up for hearing before Harbans Singh, J. The plaintiff applied before him to summon Moti Ram, Superintendent of the Cantonment Board, dealing with the question of tehbazari for clarifying the whole matter. The defendant also approached him with a request that the Executive Officer of the Cantonment Board along with the file relating to the plaintiff''s house should be summoned. The learned Judge allowed both these petitions. He examined N. S. Rangaswami, Executive Officer of the Cantonment Board, Ambala Cantonment, as a witness and thereafter did not feel the necessity of examining the Superintendent of the same office. He ordered that the Cantonment Board was a necessary party to the litigation and so it was also imp leaded as a respondent in the appeal pending before him.

The learned Singh Judge from the statement of N. S. Rangaswami and other evidence produced by the parties in the case firmly came to the conclusion that the platforms on the drains situate on two sides of the plaintiff''s house were built by the owner primarily to provide ingress and egress to the house and that no conditions were attached to the construction on such platforms except that no structures were to be put up thereon without specific permission of the Cantonment Board. In some cases the Cantonment Board perhaps was competent to accord permission to third persons to put up structures on the platforms built over the drains but even those were not to obstruct any window, door or any other opening in the house and that the wooden stall in dispute in fact obstructed one of the windows of the plaintiff''s house. The learned Judge further observed that the wooden stall in question was not erected by Gobind Ram defendant''s predecessor-in-interest in the exercise of any right of the Cantonment Board to permit third persons to build such structures and that it had evidently been done either by the owner of the house or with his consent by Gobind Ram''s predecessor-in-interest to which the Cantonment Board did not object at any stage. It was also inferred that the Cantonment Board had not charged tehbazari for the area on which the wooden stall existed and that the tehbazari was being charged on two other separate pieces of land. 0'' x 7'' and 9'' x 7'' in area, situate close to it. In this view if a person constructs a platform on a drain even if he does not become owner thereof he at least enjoys a right of its user unobstructed by any person except within certain limits prescribed by the Cantonment Board, and if any third person interfere in the exercise thereof he has a good possessory title to eject such a trespasser. Since the learned District Judge had failed to apply his mind to this aspect of the case, his finding on issue No. 1 was set aside and that of the trial Court confirmed. The decision of the first appellate Court in regard to the rate of mesne profits admissible to the plaintiff was affirmed. As a consequence, the judgment and decree of the first appellate Court was set aside and the plaintiff was granted a decree for possession of the site in dispute and for recovery of Rs. 180/- as mesne profits with half of the costs throughout against the defendant.

The learned counsel for the Cantonment Board, Ambala Cantonment, respondent, and for Gobind Ram appellant prayed that the Cantonment Board should be allowed to be transposed as an appellant in the appeal before us. The learned counsel for Nihal Chand respondent strenuously objected to it on the ground that application of the Cantonment Board respondent for leave to appeal u/s 10 of the Letters Patent had been dismissed by the learned Single Judge. We agree with him that in these circumstances the Cantonment Board cannot be allowed to be imp leaded as an appellant in the present appeal.

The learned counsel (or the appellant on merits urged that the platform on which the wooden stall had been constructed was a sort of a culvert over the drain and as such u/s 108(c) of the Cantonments Act vested in the Cantonment Board. Ambala Cantonment and so Nihal Chand plaintiff respondent was not entitled to evict the appellant there from. He also maintained that the finding of the learned District Judge on issue No 1 was a finding of fact and that being so, it could not have been disturbed in the second appeal. As already indicated, the learned Single Judge after examining N. S. Kangaswami, Executive Officer of the Cantonment Board, came to certain conclusions and on their basis decreed the plaintiff''s suit. He could do so because firstly, additional evidence had been recorded by him, and secondly, the aspect of the case which prevailed with him in allowing the plaintiff''s claim had not been considered by the first appellate Court N. S. Rangaswami, Executive Officer, as a witness in his statement dated 18th October, 1963, before the learned Single Judge admitted that the concrete platform was not built by the Cantonment Board but was built by the original owner of the house. We agree with the learned Single Judge that in view of the fact that the platform had been built over the drain by the original owner of the house, the plaintiff respondent, his successor-in-interest, even if he did not become owner thereof he at least had a right of its user unobstructed by any person subject to certain limits prescribed by the Cantonment Board He thus had a good possessory title to eject the defendant-appellant there from and more so, when the latter was not there in the exercise of the Cantonment Board''s right to allow third persons to construct such wooden stalls on the platforms over the drains. Indeed the learned counsel for the appellant failed to make out any point justifying interference in the judgment and decree passed by the learned Single Judge in the matter.

The appeal fails and is dismissed with costs.

Mehar Singh, J.

I agree.