S.K. Mal Lodha, J.
1. This is plaintiff’s second appeal against the appellate judgment of the learned Senior Civil Judge No. 1Jodhpur dated August 29, 1967 by which he set aside the judgment and decree of the Munsif, Jaisalmer, dated September 23, 1964 passed in Civil Original Suit No. 51 of 1962 & dismissed the suit of the plaintiff-appellant with costs
2. The facts giving rise to this appeal may be briefly noticed. The plaintiff-appellant owns a house situate in ward No. 6 at Jaisalmer, the description of which is given in pare 1 of the plaint. The case of the plaintiff-appellant as disclosed in the plaint is that in from of the house there existed a ‘chabutri’ measuring 6′ long& 3′ wide & this ‘Chabutri’ extended upto the shop of one Hazarimal son of Khubchand. The measurement of the chabutri as it existed at the time of the institution of the suit was 2′ 4″ long and 3′ wide According to the plaintiff, this Chabutri was part of the plaintiff’s house described in para 1 of the plaint and he has been in continuous possession of this chabutri as owner since generations There are steps on this chabutri which are being used for ingress and egress of the plain tiff-appellant The plaintiff appellant goes on to state that his neighbors Hajarimal applied to the Municipality, Jaywalkers, for permission, to reconstruct his shop. While asking for per mission, Hajarimal also applied for grant of permission to open a door abutting this chabutri. Thereupon, the plaintiff-appellant filed objection. The objection preferred by the plaintiff was decided by the Municipality on June 27, 1957 and Hajarimal was refused permission to open door on the plaintiff’s chabutri. At that time, the Municipality directed the plaintiff to keep this chabutri in the line of the ‘Jangala’ of Hajarimal by reducing the size. This direction is contained in the notice Ex 2 dated June 27 1957. In compliance with this notice/order, the plaintiff reduced the size of his chabutri from 6′ x 3′ to 2′ 4″ x 3′. The case of the plaintiff is that while doing so, he had to repair the remaining portion of the chabutri. When he was repairing the remaining portion of the chabutri, a complaint was made to the Municipality that the plaintiff was constructing a new chabutri. The Secretary Municipality, inspected the site on August 12, 1960 end made a report dated August 12, 1860 to the effect that the chabutri ha* been constructed in accordance with the decision of the Municipality and it has not been extended nor is there any obstruction created in the way nor any of the houses of the neighbours have been harmed. The Municipal Board did not accept the report of the Secretary and ordered demolition of the Chabutri on December 24, 1960. It may be mentioned here that in the order dated December 24, 1960, it has been written:
ckn fopkj foelZ ;g rg fd;k x;k fd Jhdsljhey us vius dps vksjs dh ejEer djds iDdk fd;k gSA (Sic) mlus ;g fcuk btktr cuk;k gS] vr% edkukr rkehj desVh dh jk; dks cksMZ Lohdkj djrk gS o vksVk gVkuk eatwj fd;k tkrk gSA
According to the plaintiff, this resolution dated 24-10-1960 of the Municipality was mala fide and without authority. The plaintiff preferred an appeal against that resolution (order) but that appeal, however, was dismissed on September 20, 1962. Hence, the plaintiff has instituted this suit against the Municipal Board, Jaisalmer on November 9, 1962, and prayed that a permanent prohibitory injunction be issued against the defendant Municipal Board Jaisalmer, restraining it from demolishing the disputed chabutri. The suit was contested by the Municipal Board on various grounds. The principal pleas taken by the Municipal Board in the written statement are:
(i) that the disputed chabutri is not a part of the house of the plaintiff and that the plaintiff is merely a trespasser who had constructed the chabutri on the land vesting in the Municipality illegally an without any permission;
(ii) that the suit is not maintainable in the absence of Hajarimal.
(iii) that the plaintiff demolished some front portion of the chabutri illegally constructed by him on the khalsha land and further extended it by about 1 1/2″ or 2″ and raised its height where by committing breach of the orders of the Municipality.
(iv) that the Secretary, Municipality, has no right to give any decision and the opinion so given by him does not bind the Municipality.
(v) that in fact, the plaintiff did not carry out any repair of the chabutri but he extended it illegally on the Municipal land.
(vi) that the plaintiff admitted before the members and the Chairman of the Municipal Board, Jaisalmer that he will remove the chabutri and;
(vii) that the suit for injunction is not maintainable till the plaintiff seeks declaration of his title.
The learned trial court framed the following issues,-
1. Whether the disputed Chabutra is in plaintiff’s ownership and possession and is Pattasud.
2. Whether the plaintiff has constructed the disputed Chabutra without permission, and as much, the defendant is entitled dismantle it.
3. Whether Khubchand Hajarimal is necessary party to the suit and without imploding him the suit is not maintainable?
4. Whether court fee paid by the plaintiff is insufficient?
5. Whether the defendant is entitled to damages amounting to Rs. 500/-
In this appeal, I am only concerned with issue Nos. land 2. The learned Munsif, after trial, decided issue No. 1 in favour of the plaintiff and found that the plaintiff is the owner of the disputed chabutri and he is physically possessed of it from the time of his forefathers. So far as issue No. 2 is concerned, he held that the defendant has failed to prove this issue and consequently, it was decided against it. In view of the findings recorded by him, the learned Munsif vide his judgment dated September 23, 1264, decreed the plaintiff’s suit for permanent injunction against the defendant restraining it from demolishing the disputed chabutri. Against the judgment and decree of the learned Munsif dated September 23, 1964, the dependent Municipal Board went in appeal. The learned Senior Civil Judge No. 1, Jodhpur; by his judgment dated August 29, 1967 accepted the appeal and set aside the judgment and decree passed by the trial court and as a result of this, the suit of the plaintiff was dismissed with costs in both the courts. Being dissatisfied, with the judgment and decree of the learned Senior Civil Judge No. I Jodhpur dated August 29, 1967, the plaintiff-appellant has come up in appeal to this court. On behalf of the plaintiff-appellant, a contention was raised before the lower appellate court that the suit was barred by limitation under Section 271(2) of the Rajasthan Municipalities Act, 1959 as it was not brought within six months from the date of the order dated December 24, 1960 when the cause of action accrued to the plaintiff The learned Judge of the lower appellate court in the circumstances of the case held that it will be deemed that the cause of action to file the suit against the Municipal Board accrued to the plaintiff after the date of the order of the appellate authority and the suit having been filed on 9-11-62 will be well within the period of limitation as prescribed under Section 271(2) of the Act. “He was, therefore, of the opinion that the suit is within limitation as it was brought within six months next after the accrual of the cause of action from the date of the order of the appellate authority. This finding of the learned Judge of the lower appellate court was not challenged by the learned Counsel for the respondent in this appeal before me.
3. Learned Counsel for the appellant argued in the first instance that the plaintiff-appellant did not make any new construction in respect of the chabutri. It was merely repaired since there was no erection of a new building or a new part of the building, the Municipal Board was not justified to order demolition under Section 11(D) of the Rajasthan Municipalities Act. In this connection, he invited my attention to paras 6, 8, 11 and 13 of the plaint He submitted that in the notice Ex. 2 dated June 27, 1957 which he received from the Secretary, Municipal Board, Jaisalmer, it was merely mentioned that chabutri byond Jangala may be removed. He referred to the following,
vr,o ;g QSlyk fn;k tkrk gS fd ;g vksVk Jh eqypUn iq= Hkhejkt [krjh dh nqdku ds cktw esa taxys rd j[kk tkos o taxys ls vkxs dk vksVk gVk fn;k tkosA
In the resolution/order dated December 24, 1960 in respect of the chabutri in dispute, it has been 9tated that the plaintiff, after repair, has made kutcha chabutri pacca and that this has been done without permission. The recommendation made by the Committee was, therefore, accepted and it was ordered that this chabutri in dispute be removed. Considerable emphasis was laid by Mr. Arora, learned Counsel for the plaintiff-appellant on the words:
dPps vksVs dk ejEer djds iDdk fd;kA
Therefore, on the basis of the resolution order dated December 24, 1960, it was contended that as this was not a new construction, the Municipality has illegally ordered its removal and this is contrary to the provisions of Section 170(11)(b) of the Act. A second submission was that the court below had committed an error in holding that the order dated December 24, 1960 as upheld by the Collector has not been assailed as illegal and consequently in the absence of allegations in the plaint, the plaintiff is not entitled to any relief. To substantiate this submission, learned Counsel for the appellant read para 13 of the plaint before me and in addition also submitted that objection to this effect was not taken by the defendant – respondent in the written statement filed in the trial court. Mr. I.C Maloo, appearing for the defendant respondent urged that the order of removal or for that matter of demolition of chabutri in dispute passed by the defendant is legal & just. He supported the order by making reference to the provisions of Section 170(11) and Section 203 of the aforesaid Act Particular reference we made to the finding of the learned Judge of the lower appellate court in respect of issue No. 1 and according to hi n, the finding that the disputed chabutri was not of the plaintiff’s ownership and Pattasud, is a finding of fact which is not open to challenge in this second appeal as it is based on the appreciation of the oral evidence led by the parties. According to the learned Counsel for the defendant-respondent, the land under the chabutri in dispute has not been proved to be the Pattasud land of the plaintiff and hence he had no right to erect kutcha or pacca construction on it and when it is so, the Municipal Board was perfectly justified for ordering removal of the encroachment under Section 203 of the Act. According to the learned Counsel for the defendant respondent, permission for making any alteration in the existing part of the building was necessary as contemplated by Section 117(ii)(3) read with Section 166(2) of the Act. By making a reference to the statements of PW 5 Partapchand and PW 7 Partapa; DW 1 Kanhaiyalal, DW 2 Chunnilal and DW 3 Kanhaiyalal, he argued that this was not a mere conversion of kutcha construction into a pacca one but was re erection of the existing building in respect of which, the defendant, respondent was empowered by Section 166 of the Act to enforce removal.
4. I have examined the rival contentions of the parties and having bestowed my thoughtful consideration to them, I have reached the conclusion that the appeal is devoid of force. It may be stated at the risk of repetition that in para 11 of the plaint, the plaintiff-appellant has clearly averred that the chabutri in dispute is a part of his house and as owner of this chabutri, he has been in possession of it for generations. These averments have been specifically denied by the defendant respondent in para 11 of the written statement. The assertion and denial made by the plaintiff-appellant and the defendant respondent was the subject of issue No. 1, the burden of which was placed on the plaintiff appellant. The learned Munsif of course, decided was issue in favour of the plaintiff but the learned Judge of the lower appellate court having regard to the averments made in the plaint and the evidence placed on record, observed that the plaintiff has neither alleged nor proved any act or user to prove his possessors title and that there is no title deed in respect of the chabutri (ota) which may go to prove the ownership of the plaintiff-appellant. After noticing the statements of PW 2 Satyadev, PW 3 Gambhirmal, PW 4 Takhatmal and PW 5 Partapmal, he opined that the plaintiff may be in possession of the chabutri but from their evidence, it is not clear as to in what manner he is in possession of it. Learned Counsel for the defendant respondent is right in his submission that this finding being based on appreciation of evidence, is not open to challenge in the second appeal. As measure of abundant caution at the instance of the learned Counsel for defendant-respondent, I have gone through the statements of the aforesaid witnesses and am satisfied that correct inference has been drawn by the learned Judge of the lower appellate court. The unavoidable conclusion that follows is that the chabutri is not of the plaintiff’s ownership. The learned Judge of the lower appellant court after discussing the evidence of the plaintiff and that of DW 2 Ghunnilal, DW 3 Kanhaiyalal and DW 4 Hajarimal, held that the plaintiff constructed pacca ota in place of the kutcha one in 1960 without giving any notice to Municipality and obtaining its permission and repelled the contention of the plaintiff that he has simply repaired it as a portion of it was got removed by the defendant respondent. Admittedly, no pretension was obtained by the plaintiff-appellant from the defendant-respondent for constructing the disputed chabutri pacca in place of kutcha. Building has been defined in Section 3(3) of the Act It means, amongst others, a house and includes inter alia fixed platforms, projections, door steps and staircases of whatever material constructed. Section 166 of the Act provides for setting back projecting buildings. Sub-section (2) there of reads as under,
166(2) If any land not vested in the Board, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building other than a platform, verandah, step or other external structure, the Board, after the owner of the land not less than fifteen clear days written the notice of its intention, or it the land is vested in the State Government, then with the permission in writing of such officer, as may be appointed or authorized by the State Government in this behalf, may take possession of the said land with its enclosing wall, hedge or fence, if any, and if necessary, clear the same; and land so acquired shall thenceforward be deemed a part of the public street and be vested in the Board.
Section 170 contains provisions relating to erection of buildings. Sub-section (1) of Section 170 is material for the present purpose and it is reproduced,-
170. Provisions relating to erection of building, – (1) Before beginning within the limits of the Municipality-
(a) to erect a new building or new part of a building, or
(b) to re erect to make a material alteration in a building or
(c) to re-erect or re-erect any projecting portion of a building in respect of which the Board is empowered by Section 166 to enforce a removal or set back, or
(d) to make or enlarge a wall, the person intending so to erect or re erect or make or enlarge shall give notice of his intention to the Board.
Sub-section (11) of Section 170 provides that any person who begins, continues or contemplates the erection or re-erection of or any material alteration in, a building or a part of building of the erection or re-erection or any projecting portion of the building in respect of which the Board has been empowered by Section 166 to enforce a removal or set back or the construction or enragement of a wall without giving notice required by Sub-section (1) in contravention of any provisions of this section or of an order of the Board made under Sub-section (6) or Subsection (7) shall be on liable conviction to fine which may extend to two hundred rupees and the Board has further been authorized after serving written notice to demolition of such building, projecting portion, alteration or enlargement of a wall. It was not disputed before me that the chabutri in dispute is not a part of the house of the plaintiff. Therefore, before, making this chabutri in dispute pacca in my opinion, it was necessary for the plaintiff-appellant to obtain permission under Section 170(1) of the Act. I need not dilate on this aspect of the matter whether it is an erection or a new part of the building as it is a re-erection to make a material alteration in the building, for, I in of the opinion that in any view of the matter, it was a re-erection of the projecting portion of the building as envisaged by Section 170(1)(c) of the Act in respect of which the defendant respondent is empowered by S 166 of the Act to enforce a removal or set-back. As before constructing pacca chabutri no notice was given to the Municipality and no permission in respect thereof was obtained. The Board did not commit any illegality in ordering its removal as contained in the resolution/order dated December 24, 1960. In that view of the matter, no exception can be taken to the finding of the learned Judge of the lower appellate court that the plaintiff was not entitled for the issuance of the permanence prohibitory injunction against the defendant-respondent.
5. The matter does not rest at that. As stated by me above, the plaintiff come forward with a case that the chabutri was of his ownership This was negatived by the lower appellate court. It means that when the land of the chabutri has not been proved of the plaintiffs ownership, it was an encroachment on khalsa land. Section 203(2) of the Act lays down that the Board has power to remove any obstruction or encroachment and shall have the like power to remove any unauthorized obstruction or encroachment of the like nature in any space not being private property whether such space is vested in the Board or not. The land on which the pacer chabutri was constructed was not the private property of the plaintiff appellant as held by the learned Judge of the lower appellate court. In view of this, the defendant respondent was not wrong when it by resolution order dated December 24, 1960 ordered its removal and as such no case for issuance of the permanent injunction restraining the defendant-respondent from removing the chabutri in dispute is made out.
6. In these circumstances, it is not necessary to examine the second argument of the learned Counsel for the appellant.
7. For the reasons mentioned above, this appeal fails and it is hereby dismissed. The parties shall bear their own costs of this appeal.