1986 PLP 2306 (CLC)

(4) Whether the shops in question existed at the site at the time of purcahse of Khasra No. 936 by the plaintiff? If so, with what effect? O.P.D. (5) Whether the plaintiff faces an obstruction so as to approach Khasra No. 934 and the value and utility to his property has decreased due to this obstruction because of the construction of the shops, etc. in question? (6) If issue No. 5 is proved, whether the said construction is unlawful? (7) In case of proof of issue No.6, whether the plaintiff is entitled to get removed the construction detailed &t points A, B, C, D, E, F, G, H and K as shown in the site plan annexed with the plaintiff? O.P.P. (8) Whether the plaintiff has no locus standi and cause of action to file the suit? 0 . P. D . (9) Relief." On 27‑7‑1972, the trial Court found all issues in favour of respondent No. 1/plaintiff and passed a decree in favour of respondent No.1 directing the defendants therein to remove the shops and clear the obstruction of the frontage and passage of the land of respondent No.1/plaintiff situated in Khasra No. 936 at the point of contiguity of his land with road lying to its west in Khasra No. 934 by demolishing all the constructions so as to provide free access to the land of the plaintiff /respondent No.1 abutting the road side at all the points of the contiguity with that road. Feeling aggrieved, the petitioners herein filed appeal wherein respondents Nos.2 to 4 who were co‑defendants in the suit were impleaded as respondents. The appeal was also dismissed by the learned District Judge on 12‑2‑1973. Hence this revision.

3. Before me, the learned counsel has challenged the findings of the Courts below on issues Nos. 4 to ?. As for issue No.4, the learned counsel submitted that the findings of the Courts below are based on the misreading of the document Exh. D.4 which clearly shows that the shops were constructed by the private defendants before 17‑12‑1962 when the land. in Khasra No. 936 was purchased by respondent No.1. As for issue No.5, the learned counsel submits that the findings of the Courts based on misreading of evidence inasmuch as D.W.2 Karim Bakhsh, Overseer and P. W.4, the respondent No.1/plaintiff have admitted in their statements that the land of the plaintiff /respondent has not been totally blocked and may be approached through various ways. As for issue No.6, the learned counsel submits that in spite of decision of issue No.5 in favour of respondent No.1, the construction to the shop cannot be held to be unlawful because the right of frontage is not recognized by any law. On issue No.7, the learned counsel submits that since the Municipal Committee and appellate authority have refused to sanction the plan, the respondent No.1 is not entitled to raise construction in accordance with the plan. The learned counsel has also submitted that since section 169 of the Punjab Municipal Act has been repealed before the institution of the suit, the Courts below could not rely upon the authorities wherein the scope of section 169 of Punjab Municipal Act, 1911 has been interpreted. Futhermore, under section 183 of the Municipal Ordinance, 1960, the Muncipal Committee Leiah is quite competent to lease out the parts of the road. As against this the learned counsel for the respondents has defended the impugned judgments and decrees of the learned Courts below.

4. I have considered the arguments advanced by the parties and have gone through the record. I propose to discuss the contention of the learned counsel for the petitioners issue‑wise. As for issue No.4, I have examined document Exh. D.4 It does not indicate as to when the shop was constructed and as such there is no misreading of this document by the Courts below. Furthermore. I find that in para. No.5 of the judgment, the District Judge has stated: "As regards issue No.4, the learned counsel for the appellant/ defendant frankly admitted before me that the evidence on the record was not sufficient to prove the shops in question existed at the site at the time Khasra No. 936 was purchased by the respondent /plaintiff. " That being so, I am of the view that it does not lie in the mouth of the petitioners to challenge the findings of the Courts below on issue No.4. As for contention of learned counsel with regards to issue No.5, I have examined the statement of‑D.2, Karaim Bakhsh and Zafar Iqbal P. W.4. I do not find any misreading or non‑reading, which might have affected finding of the trial Court. Karaim Bakhsh P.W.2 rather stated that: No doubt this . witness has also stated that towards the north of the land of ~She pieintiff there is a thoroughfare 14/15 ft. In width but 1 my mind, this statement does not‑negate issue No.5. As for issue No.6, I am not inclined to agree with the contention of the learned counsel that since no specific law exists recognising the right of frontage, therefore, the same cannot be accepted as a legal right and as such the constructions are not unlawful, inasmuch as, it is now, well‑settled that the right of access from private property to public road is a recognized legal right irrespective of whether the owner has proved special damages or not. It is also not less well recognized that the owner of particular property can be granted mandatory injunction for removal of permanent structure which interrupts his right of access to the Highway. Even otherwise, the construction of the shops by the defendants therein was unlawful because admittedly, the construction have been raised without getting any plan sanctioned by the Municipal Committee. For all these reasons, there appears to be no force in the criticism of the learned counsel on the findings of the learned Courts below on issue No.6. In view of the above discussion on issues Nos. 4 to 6, 1 am of the opinion that the contentions of learned counsel relating to issue No. 7 must collapse. In the circumstances of the case, there appears to be no legal justification to refuse respondent No. 1 his proposed construction and reject the plan submitted by him.

5. I am satisfied that the learned Courts below have properly read the evidence, and have applied mind to the legal and factual aspects of the case and have given sound reasons in support of the conclusions arrived at and as such have exercised jurisdiction quite legally. For what has been stated above, it is not a fit case for interference under section 115, C.P. C. with the findings of the learned Courts below. Resultantly, the revision is dismissed leaving the parties to bear their own costs. H . B . T . Revision declined.