Holding

The suit is not barred by limitation as the encroachment constitutes a continuing tort, the representative suit is maintainable without Order I Rule 8 compliance, and the evidence establishes the public street, so the decree is affirmed.

Summary

Hariram appealed against judgments that upheld a permanent injunction ordering the removal of his alleged encroachment on a 10‑foot public street. He argued that the suit was barred by limitation, violated Order I Rule 8 of the CPC, and lacked proof that the land was a public street. The Supreme Court held that encroachment on a public road is a continuing tort, so Section 22 of the Limitation Act applies and the suit is not time‑barred. It also ruled that a representative suit filed by an aggrieved community member need not comply with Order I Rule 8, and that the evidence (site plan, patwari report, Panchayat findings) sufficiently established the existence of the public street and the appellant's encroachment. Consequently, the decree of the trial court was confirmed and the appeal dismissed.

Issues considered

Whether the suit is barred by limitation under the Limitation Act, 1963.
Whether the suit is maintainable despite alleged non‑compliance with Order I Rule 8 of the CPC (representative suit).
Whether the plaintiff proved that the disputed land is a public street and that the appellant encroached upon it.

Legislation cited

Code of Civil Procedure, 1908s. Order I Rule 8
Code of Criminal Procedure, 1973s. 133
Limitation Act, 1963s. 22, s. 3

Subjects

LimitationContinuing tortPublic streetEncroachmentRepresentative suitOrder I Rule 8Civil injunctionProperty rights

Judgment

[2011] 1 S.C.R. 1076

A HARi RAM
v. ~(

JYOTI PRASAD & ANR.
(Civil Appeal No. 1042 of 2011)
JANUARY 27, 2011
B
[DR. MUKUNDAKAM SHARMA AND
ANIL R. DAVE, JJ.]
..,.,
Limitation Act, 1963 - s.22 - Suit filed allegin~ that the
c defendants had illegally encroached on a public street - Trial
court decreed the suit and issued permanent injunction -
Decree challenged on the ground that the suit itself was
barred by limitation - Held: The suit could not be said to be
barred by limitation as encroachment on a public-Street is a
D continuing wrong and therefore, there existed a continuing ..
cause of action - S.22 of the Limitation Act would appJ.y - ~

Code of Civil Procedure, . 1908. --
Code of Civil Procedure, 1908:
E Order I Rule 8 - Suit filed alleging that the defendants
had made illegal I unauthorized construction over a 10 feet
wide public street by way of illegal encroachment- Trial court
decreed the suit and issued permanent injunction directing
removal of unauthorized construction - Decree challenged,
F on the ground that the suit was bad for non-compliance of the
provisions of Order I Rule 8 - Held: 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 the affected person himself had
G filed a suit, therefore, the suit cannot be dismissed on the ,_ ,

ground of alleged non-compliance of the provisions of Order '
I Rule 8 - 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
H 1076
HARi RAM v. JYOTI PRASAD & ANR. 1077 -

encroachment therefrom and in such a suit he need not A
,~ comply with the requirements of Order I Rule 8 - In that view
of the matter, the suit filed was maintainable.

Suit filed by respondents alleging that the defendants had
made illegal I unauthorized construction over a 10 feet wide 8
public street by way of illegal encroachment - Trial court
decreed the suit and issued permanent injunction directing
removal of unauthorized construction - Decree affirmed by
First Appellate Court as also High Court - Challenge to, on
the ground that it was not proved that the suit land was a public C
street in which encroachment was made by the appellant-
de(endant - Held: On appreciation of the evidence, all the
three courts below namely the High Court, the First Appellate
Court as also the trial court held that the disputed suit land is
a part of the public street where the appellant had encroached
upon - The aforesaid .findings are findings of ~act - The D
- '
evidence on record proved that there existed a 1Jublic street
- -

of 1O feet width and also that the appellant had encroached
upon the suit property consisting of the aforesaid street of 10
feet width - Decree passed by the trial court accordingly
confirmed. E

The respondents filed civil suit alleging that
appellant-defendant and another defendant had made
lllegaU_unauthorized construction over a 10 feet wide
public street by way of illegal encroachment, and F
accordingly prayed for mandatory injunction against the
defendants. The trial court decreed the suit and issued
permanent injunction directing the removal of
unauthorized construction. The judgment and decree

-- passed by the trial Court was affirmed by the First
Appellate Court (Additional District Judge), and further
affirmed by the High Court in second appeal. -
G

In the instant appeal, the appellant challenged the
judgments and decrees passed by the courts below on
- three grounds, viz. 1) that the suit itself was barred by H
1078 SUPREME COURT REPORTS [2011) 1 S.C.R.

A limitation; 2) that the suit was bad for non-compliance of
the provisions of Order I Rule 8 of the CPC and 3) that _....,
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 was made by
B the appellant.
Dismissing the appeal, the Court
HELD:1.1. The records placed disclose that the
appellant in his written statement took up a plea that the
C 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. The
·appellant did not make any submission before the trial
court and the first appellate court regarding the plea of
D limitation. The said plea was made before the High Court
which 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 view
of the provisions of Section 3 of the Limitation Act which
·E 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. The High Court after
considering the aforesaid plea held that the suit cannot
F 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
G 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. Immediately thereafter the
aforesaid suit was filed seeking Issuance of a mandatory
H Injunction. In view of the aforesaid facts and also in view
HARi RAM v. JYOTI PRASAD & ANR. 1079

of the fact that encroachment on a public street by any A
person is a continuing cause of action, there is no merit
in the said contention. [Paras 15, 16, 17] [1086-G-H; 1087-
A-E]
1.2. Any act of encroachment is a wrong committed
B
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 C
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 D
--~
Injury. [Para 18] [1087-F-H; 1088-A]
1.3. Section 22 of the Limitation Act, 1963, provides
that "in case of a continuing breach of contract or in case
of a continuing tort, a fresh period of limitation begins to e
run at every moment of the time during which the breach
or the tort, as the case may be, continues." In an earlier
case, this court had 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 F
breaches would be continuing, to which the provisions
of Section 22 of the Limitation Act, 1963, would apply.
Therefore, the plea that the suit Is barred by limitation has
no merit at ail. [Para 19] [1088-C-E]
,. _.._ Sankar Dastidar v. Shrimati Banjula Dastidar and Anr., G
AIR 2007 SC 514--' relied on.

2. Apart from being a representative suit, the suit was
flied by an aggrieved person whose right to use public
street of 10 feet width was prejudicially affected. Since H
1080 SUPREME COURT REPORTS [2011) 1 S.C.R.

A the 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.
Any member of a community may successfully bring a
suit to assert his right in the community property or for
B protecting such property by seeking removal of
encroachment therefrom and in such a suit he need not
comply with the requirements of Order I Rule 8 CPC. In
that view of the matter, the suit filed by the plaintiff/
respondent No. 1 was maintainable. [Paras 20, 22 and 23]
C [1088-F-G; 1089-B-D]

Ka/yan Singh, London Trained Cutter, Johri Bazar, Jaipur
v. Smt. Chhoti and Ors., AIR 1990 SC 396 - referred to.

3.1. The suit was initially instituted against two
D defendants. The appellant was defel)dant 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
E 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 admitting that he had also
encroached upon some area of the 10 feet wide street
F 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, PW-5 and PW-
6 who were present and participated in the said
Panchayat and also corroborated the said admission
G before the Panchayat. [Paras 24] [1089-E-H; 1090-A]
3.2. In all 8 witnesses were examined by the plaintiff
respondent No.1. PW-3, who was examined in the suit
proved the report of the BOO who had visited the
disputed property on 18.1.1995 after which he also
H submitted a report certifying that an encroachment has
HARi RAM v. JYOTI PRASAD & ANR. 1081

been made by the appellant over the disputed street. PW- A
4, the original owner of the entire area, 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 village
and towa"ds eastern side of the plot of the defendant/ B
appellant he had left a street of 10 feet width. 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 c
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. On appreciation of the aforesaid
evidence, all the three courts namely the High Court, the 0
First Appellate Court as also the trial court held that the
aforesaid disputed suit land is a part of the pu_blic street
where the appellant has encroached upon by
constructing a part of the house. The aforesaid findings
. are therefore findings of fast. Public Officer namely E
Patwari was examined who had proved the report
submitted by the BOO stating that part of the suit property
ts a public street. [Paras 26, 27] [1090-E-G]

3.3. The site plan (Ext. PW-7 A) filed by the plaintiff/
respondent proves and establishes that there is a public F
street of 10 feet width. In all the sale deeds of the area
· as disclosed from the statement of PW-4, the aforesaid
street of 1O 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 G
that the appellant has encroached upon the suit property
consisting of the aforesaid street of 10 feet width. That
being the position, there is no infirmity in the judgment
and decree passed by the Trial Court and affiri:ned by the
H
1082 SUPREME COURT REPORTS [2011) 1 S;C.R.

A First Appellate Court and by the High Court in the Second
Appeal. [Para 28] [1090-H; 1091-A-B]

4. 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,
8
it will be open for the plaintiff/respondent No. 1 to get the
decree executed in accordance with law. [Para 29] [1091-
C-D]
Case Law Reference:
c
AIR 2007 SC 514 relied on Para 19

AIR 1990 SC 396 referred to Para 21

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 1042 of 2011.
+·
From the Judgment and Order dated 31.07.2009 of the
High Court of Punjab and Haryana at Chandigarh in RSA No.
2698 of 2008.
E
Anoop G. Choudhary and J. Chaudhary, Devendra Kr.
Singh, Ajay A. and Prem Sunder Jha for the Appellant.

· Jasbir Singh Malik, Ekta Kadian, Devender Kumar
Sharma and S.K. Sabharwal for the Respondents
F
The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.

2. By this judgment and order, we propose to dispose of
G the aforesaid appeal which is filed by the appellant herein after _.._ \.
being aggrieved by the judgment and order passed by the High
Court 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 .
H No. 92 of 2007. These facts, therefore, make it crystal clear that
HARi RAM v. JYOTI PRASAD & ANR. 1083
[DR. MUKUNDAKAM SHARMA, J.]

the present appeal is directed against the concur,rent findings A
..,...Ji of f;;ict 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 8
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 C
have their common interest in the disputed street alongwith co-
inhabitants of the same area. It was stated that the residential
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 D
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 E
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 F
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.'].
5. In the plaint it was further stated that earlier the
I ..__ respondent No. 1 as complainant filed a complaint under G
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
SOM.I
H
1084 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 6. When the matter was challenged before the Punjab and
Haryana High Court, the High Court held that the matter which :.l,.._,
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
B 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.
~·
7. Defendant Nos. 1 and the present appellant as
c 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:
D
1. Whether the defendants have made illegal I -r .
unauthorized construction over the public street by
way of illegal encroac;:hment as shown in red colour
in the attached site plan shown by letters ABCD
E 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.

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

4.Relief.

8. To substantiate his case, the plaintiff/respondent No. 1
G 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
H 6.12.2007 decreed the suit and a permanent injunction was
HARi RAM v. JYOTI PRASAD & ANR. 1085
,, [DR. MUKUNDAKAM SHARMA, J.]

issued directing the removal of unauthorized construction from A
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 B
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.

9. Being aggrieved by the aforesaid judgment and order C
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 D
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 E
I'
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
F
thereof, we heard the learned counsel appearing for the parties.
'
12. Mr. Anoop G. Choudhary, learned Senior Counse,1-
appearing for the appellant very forcefully argued that none of
the judgments and decrees passed by the courts below is G
I ..,.. 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 H
1086 SUPREME COURT REPORTS [2011) 1 S.C.R..

A 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
B 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 submitted
that no evidence has been led to prove and establish that it was
c 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.
0
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
E 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
F 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
G 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
.,,,
H also before the first appellate court regarding the plea of
- HARi RAM v'. JYOTI PRASAD & ANR.
[DR. MUKUNDAKAM SHARMA, J.]
1087

limitation. Such a plea is seen to have been made before the A
High Court. The saict plea which was made before the High
. Court was considered atlength 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 view of the provisions . B
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 C
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 D
--~
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 E
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
11
con ten t•ion.
F
1
18. Any act of encroachment is a wrong committed by the
doer. Such an encroachment whe_n 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 G
is created to free and unhindered adcess 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
• I

H
1088 SUPREME COURT REPORTS [2011] 1 S.C.R.

A is created as long as such injury continues and as long as the
,doer is responsible for causing such injury.

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: '
B
"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."
c
This court had the occasion to deal with Section 22 of the
Limitation Act, 1963, in the case of Sankar Dastidar v. Shrimati
Banju/a Dastidar and Anr reported in AIR 2007 SC 514, in
which the Supreme Court held that when a right of way is
0 claimed whether public or private over a certain land over which
the tort-teaser has no right of possession, the breaches would
be continuing, to which the provisions of Sectioll' 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
E at all.

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
F 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
G 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
H in AIR 1990 SC 396. In paragraph 13 of the said judgment,
HARi RAM v. JYOTI PRASAD & ANR. 1089

- [DR. MUKUNDAKAM SHARMA, J.]

this Court has held that suit could be instituted by representative A
of a particular community but that by itself was not sufficient to
--~ constitute the suit as representative suit inasmuch as for a
ot
representative suit, the permission Court under Order I Rule
8 of the CPC is mandatory.
B
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
c
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.

23. In th:it view of the matter and in the light of the aforesaid D
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
E
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
F
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 G
.} --+: encroachment after 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 H
1090 SUPREME COURT REPORTS [2011] 1 S.C . R.
...
A 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
8
was examined in the suit proved the report of the BOO 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
C 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 village and towards
eastern side of the plot of the defendant/appellant he had left
a street of 10 feet width.
D
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
E had constructed the house and despite the s~id 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.

F 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
therefore findings of fact. Public Officer namely Patwari was
G examined who had proved the report submitted by the BOO
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
H of 10 feet width. In all the sale deeds of the area as disclosed
... HARi RAM v. JYOTI PRASAD & ANR. 1091
[DR. MUKUNDAKAM SHARMA, J.]

from the statement of PW-4 Bal Kishan Dass, the aforesaid A
~r~t of 10 feet width is shown and the aforesaid evidence go
unrebutted. Thus there exists a street of 10 feetwidth. It is
also pidved from the evidence on record that the appellant has
encroacheCl,.upon the suit property consisting of the aforesaid
street of 10 feet width. That being the position, wefind no· B
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.

29. We, therefore, find no merit in this <1ppeal which is . C
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. D
·--~

30. In terms of the aforesaid observations and directions,
the appeal is dismissed.

B.B.B. Appeal dismissed.