LexHARI RAM versus JYOTI PRASAD & ANR.
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[2011] 1 S.C.R. 1076 A HARi RAM v. ~( JYOTI PRASAD & ANR. (Civil Appeal No. 1042 of 2011) B JANUARY 27, 2011 [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 1 O 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 G Appellate Court (Additional District Judge), and further affirmed by the High Court in second appeal. - 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
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