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Bhootpurva Sainik Kalyan & Aam Janta, Through General Secretary, Harish Chand Verma v/s Area Commander, Head Office 61 (Independent) Sub- Area Military Area

    Civil Second Appeal No. 504 of 2017

    Decided On, 09 October 2017

    At, High Court of Rajasthan Jaipur Bench


    For the Appellant: RP Singh, Sr. Advocate with G.P. Sharma, Advocate. For the Respondent: RD Rastogi, ASG., Anand Sharma, Advocate.

Judgment Text

This Civil second appeal under section 100 of CPC is directed against the judgment and decree dated 29.7.2017 passed by the learned Additional Sessions Judge No. 9, Jaipur Metropolitan, Jaipur, in Civil Appeal No. 7/2012 filed against the judgment and decree dated 03.02.2012 passed by the learned Additional Civil Judge (J.D.) Jaipur Metropolitan in a civil suit No. 616/1994.

The brief facts giving rise to this appeal are that the plaintiffs-appellants with Late Captain C.R. Dudi s/o Shri Nandram Dudi filed a civil suit No. 616 of 1994 for perpetual injunction in the court of Additional Civil Judge (J.D.) Jaipur West, Jaipur Metropolitan pleading therein that plaintiffs- appellants are residents of Kailash Nagar Colony, Jhotwara and representing Kailash Nagar, Kumawat Colony and Prem Nagar Colony. The aforesaid colonies are situated adjacent to military area Jhotwara. In the aforesaid colonies the ex-army personnel are residing with their families since long. It has been pleaded that there is a road situated on Jhotwara Road opposite to Assam maida factory connecting to the aforementioned residential Colony which is used for the residents of the aforesaid colonies as public way. The respondents made attempt on 2.12.1994 to obstruct the aforesaid road. The plaintiffs prayed for restraining respondents from making any kind of obstruction in the aforesaid road.

The stand of the respondents was is that the alleged road is not a public road, the said road has never been used by the residents of the aforesaid private Colonies, the road belongs to the respondents and has been constructed and is being maintained by the respondents for sole use of Army establishment and is occupied by them.

On the basis of the pleadings of the parties the learned trial court framed as many as 8 issues:-


The plaintiffs-appellants examined 3 witnesses and exhibited 3 documents before the trial court and the defendantsrespondents examined 1 witness. Having considered the testimony of the witnesses and going through the documentary evidence, the trial court decided issued No. 1 to 3 against the plaintiffs and in favour of defendants and issues No. 4, 5 and 7 against the defendants and in favour of plaintiffs. Accordingly, the suit was dismissed.

Aggrieved by the judgment and decree of the trial court, the plaintiffs filed an appeal before the learned District Judge, Jaipur Metropolitan, Jaipur. Which was heard and decided by the learned Additional District and Sessions Judge No. 9, Jaipur Metropolitan, Jaipur. During the hearing of the first appeal, two more documents namely orders dated 13.10.1998 an

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20.12.2000 issued by the Army Headquarters were taken on record on behalf of the plaintiffs and exhibited as (Ex. 4) and (Ex. 5). The learned first appellate court having heard the parties and going through the record as well as assessing the effect of the said documents, concluded that the learned trial court has not committed any error in deciding issues Nos. 1 to 3 and 6 against the plaintiffs and therefore judgment and decree of the trial court need no interference. Accordingly, the appellate court dismissed the appeal of the appellants-plaintiffs.Aggrieved by the judgments and decrees of both the courts below the plaintiffs-appellants are before this court by way of this second appeal.It is argued by the learned counsel for the plaintiffs appellants that during trial of the suit, the defendants have not come with clean hands as despite applications having been filed by the plaintiffs and despite the order dated 3" November, 2009 passed by the trial court to produce the letters dated 13th October, 1998 and 20th December, 2000 on record, they have suppressed these important documents issued by the Army Headquarter with regard to the use of vehicles in cantonment roads. After almost two years, they filed an affidavit stating that despite best efforts those two letters were not available with them. On 5th September, 2011, the learned trial court observed that the affidavit filed by the defendants does not comply with the directions contained in the order passed on November, 2009 and fixed the case on 30.9.2011. The learned trial court despite its earlier observations contained in order dated 5th September, 2011, on the basis of fresh affidavit filed by the defendants rejected the application of the plaintiffs vide order dated 11th November, 2011. In such a circumstance it is clear that the defendants not only concealed the two important policy letters but also did not comply with the directions of the trial court and filed misleading affidavit. The learned trial court has miserably failed to consider this aspect of the case and thus, committed illegally while dismissing the suit of the plaintiffs.It is contended that in the appeal before the lower appellate court also, the plaintiffs filed an application under Order 16 Rule 6 read with Section 151 for summoning the documents i.e. the two policy letters but the learned lower appellate court without considering the relevance of the documents to decide the controversy between the parties, dismissed the application of the plaintiffs vide order dated 29th November, 2014 observing that the aforesaid documents had not been ordered to be produced in the court as the same were not in the power and possession of the defendants. Another application filed under Order 16 rule 6 CPC filed by the plaintiffs for summoning the aforesaid two policy letters from the power and possession of the Army Head quarter also came to be dismissed on the ground that the aforesaid letters were not summoned during trial. However, the plaintiffs were able to obtain copies of the aforesaid letters which were produced by them on record along with an application under Order 41 Rule 27 CPC and the same were taken on record vide order dated 13th January, 2017. The defendants admitted the documents and the same were marked as (Ex. 4) and (Ex. 5) by the lower appellate court, despite taking on record the aforesaid two documents, the learned lower appellate court neither afford any opportunity to the plaintiffs to cross examine the witness appeared for the defendants nor the defendants qualify their admissions.It is submitted that the learned first appellate court without properly considering the facts and circumstances of the case and the material and evidence available on record dismissed the appeal of the plaintiffs appellants only mentioning that regarding the aforesaid two documents they did not find any mention in the pleadings.It is contended that learned trial court totally misconstrued the documents (Ex. 1) and (Ex. 2). (Ex.1) is the revenue map indicating the existence of routes even in 1931-32 which cross both the railway lines, i.e. Jaipur-Sikar and Jaipur-Phulera which are the only relevant routes in the present litigation. (Ex. 2) indicates this route in larger detail where the point of inter reference was specifically marked with a caption "entry blocked here" Thereafter the road goes to Central School, across the Jaipur-Sikar Railways Line and joins the Jhotwara Road at Assam Maida Factory.The learned trial court further grievously erred while holding that when the road is in a special area for special people it cannot be called a public road. It is submitted by the learned counsel for the plaintiffs-appellants that the roads have to be either in the cantonment area or in the municipal area. The Cantonment Act, 2006 as well as the Rajasthan Municipal Act, 2009 provide for restrictions of movement on these roads. Therefore, there was no scope or space for such bizarre extrapolation.Regarding finding of the learned trial court on issue No. 2 it is argued that this issue has been decided on the basis of findings recorded on issue No. 1 i.e. on a hollow legal foundation with a cascading effect on all other issues. While deciding issue No.5, the learned trial court held that the suit had not been filed in a representative capacity.The appellate court framed three points for determination. First was to the effect 'whether the road was a public road or a private property of the defendants. Second point was to the effect wherever the plaintiffs were entitled to easementary right even if the disputed road was private property of the defendants and the third point was to the effect whether the plaintiff was entitled to the relief of injunction without having the road declared as a public road.The appellate court invented a new phrase to skirt the judgment of the Karnataka High Court has upheld by the Hon'ble Supreme Court and also the documents (Ex.4) and (Ex.5) which specifically call the defendants snot to impose any restriction on the movement of the traffic. The "South Area Command" area is a term that does not find any mention in any of the pleadings of the defendants. By coining a new phrase, which does not find place in the pleadings of the defendants, the appellate court has practically over ruled the documents i.e. (Ex.4) and (Ex.5) along with the judgment of the Division Bench of Karnataka High Court Dr. Nitin G.Khot Vs. Station Commandant, Belgaum AIR 1998 Kart. 300 upheld by the Supreme Court. The appellate court observe that the decision of the Karnataka High Court and the documents (Ex.4) and (Ex.5) are related to the road passing through the Cantonment Areas but this area is under the jurisdiction of 'South Area Command'. Therefore, on the basis of the judgment of the Karnataka High Court and the documents the plaintiff cannot claim any right of way on the ground that the way passes through the Cantonment Area.The learned lower appellate court further failed to consider that a military station/army area/'South Area Command' is not defined anywhere and there is no law on the subject of use of road military stations, Therefore, in absence of any law the plaintiff cannot be denied his fundamental right taking shelter of the word 'military station' or 'south area command'.The counsel for the plaintiff-appellant also contended that the appellate court grossly overlooked the age old legal dictum that without express pleading, no amount of proof would suffice and no finding can be given without such pleadings.It is also submitted that point No.2 is related to the easementary right which was not pleaded in the plaint.Regarding point No.3, it is submitted that it is held by the learned lower appellate court that without seeking declaration of easementary right, no injunction could be claimed. This conclusion is again based on imaginary facts when the rights of the easement had not even been claimed rather the plaintiff pleaded it to be a constitutional right. A constitutional right is not subservient to an easementary right and the courts below have failed to address the correct issue. It is submitted that these roads were in existence since 1930-31 and were being used by the public since then.The learned appellate court below also failed to consider the relevance and importance of fundamental right of a citizen as guaranteed under Article 19 (1) (d) of the Constitution of India which is subjected only to reasonable restrictions in accordance with law. With regard to free movement of a citizen on the road only reasonable restrictions can be imposed after making law. There is no other way to put restrictions on this fundamental right. In the instant case, no law has been shown under which the restrictions in question have bee placed. There is neither any formal order nor law placed on record by the defendants to restrict entry at Kailash Nagar. Such restrictions can be placed either under the Cantonment Act, 2006 or the Rajasthan Municipal Act, 2009 which is missing in this case.The learned Counsel for the plaintiffs-appellants also contended that in view of (Ex. 4) and (Ex. 5), which have been taken on record by the learned lower appellate court after hearing the learned counsel for the defendants, the defendants cannot escape from the consequence of their unqualified admission on these documents under Section 58 of the Indian Evidence Act and, as such, there was no necessity for the plaintiff to prove anything more. There is no explanation in the pleadings of the defendants with regard to the distinction now sought to be created between Military Station' and Cantonment Area'.The lower appellate court has not properly considered this aspect of the case that after taking on record the additional documents (Ex. 4) and (Ex. 5) the matter was required to be remanded to the trial court to examine the relevancy and effect of such documents and to give its adjudication on such documents with a right to the party to appeal before the High Court.It is contended that both the learned courts below have not properly considered that statement with regard to the exservicemen being permitted entry in the Army Area after showing passes. Despite noticing the aforesaid evidence on which there is no cross-examination, the courts below omitted to grant relief to the ex-servicemen and now the defendants bent upon to block the entry for all personnel including ex-servicemen permanently.It is also argued that if the defendants claim that it was not a public road then the defendants were required to lead proper evidence in terms of Section 91 of the Indian Evidence Act and produce best evidence which is in exclusive knowledge which is lacking in the present case. To substantiate the claim of the defendants that the property is their own property, the defendants produced no document on record. The learned appellate court below has not answered the aforesaid question and on erroneous consideration decided the same against the plaintiffs.On the otherhand, Mr. Rajdeepak Rastogi, learned Addl. Solicitor General and Mr. Anand Sharma have contended that the road in dispute is not a public road. They have also contended both the learned courts below have concurrently recorded findings of facts which require no interference by this Court while deciding second appeal under Section 100 CPC. No question of law much less any substantial question of law is involved in this second appeal. Hence, the Same deserves to be dismissed.Sofar as the argument of the learned counsel for the plaintiffs-appellants regarding the fundamental right of the plaintiffs-appellants as enshrined under Article 19 of the Constitution of India is concerned, it is submitted that the interest of nation exceeds all personal interests and personal interest should make way to the national interest. The South Command Area is a strategic defence area and in the very nature of things, the matter of its location is a delicate and sensitive issue involving the defence and security of the country which cannot be compromised with under any circumstances.Heard the counsels for the parties and perused the record. At the outset, I would like to mention here that I have recited that arguments of learned counsel for the plaintiffappellant in extenso, which were submitted in writing also, to show that though the second appeals are filed as a matter of course and cases are argued on irrelevant and petty ground which heavily tax upon the valuable public time of the court.The original suit was filed on the ground that a public road on which public of certain colonies had right of way has been obstructed. The relief claimed was for permanent injunction. The very relief required that plaintiffs would have adduced evidence to prove that the road was a public road and they had a right of way on the road. Instead of adducing such evidence they continue to press upon the trial court and the defendants to produce two letters of Army Headquarter which in fact were not of any help to the plaintiffs. Those letters had subsequently been obtained by the plaintiffs and produced before the learned first appellate court and the court had taken them on record as (Ex. 4) and (Ex. 5) and has also considered there effect. Even then they recite the whole episode before this court only to say that defendants did not go before the courts below with clean hands. They nowhere say how their case had been adversely affected by the defendants' so called unclean hands. The first appellate court had accepted and taken the (Ex.4) and (Ex.5) on the record and there was no question of their proof before the first appellate court, even then the learned counsel for plaintiff ventured to take me through section 58 of the Evidence Act. He also referred to section 91 of the Evidence Act without telling how that section was relevant in the context of the case at hand. It is an appeal against the judgment and decree passed in a civil suit but he argued fundamental rights as if it was a writ under article 226. Section 100 of CPC is very much clear which provides that second appeal lays only on substantial question of law and such questions should arise only from and within the scope of the proceedings of the courts below. Therefore, the learned Counsels for the parties should address the court only on such question remaining within the scope of proceedings and their argument should strictly be within the scope of the proceedings. This will save the time of both the court and the parties.Be that as it may. The whole controversy in the matter in hand revolves around the question whether the disputed road is a 'public road' and whether the plaintiffs have a right of way over the said road. Both the courts below have found that the plaintiffs have failed to prove that the disputed road is a public road and they have a right of way over the road. Now, the question before this court is whether the courts below have committed any error of law in holding the question as aforesaid by wrong appreciation of evidence or non-appreciation of evidence or by misapplication of law or precedents.Here I would like to remind myself that it is well settled principle of civil law that a person who seeks to get relief from the court should prove his case to the satisfaction of the court and in absence of such proof, no amount of weakness in the pleadings of the defence can afford him the relief sought for. In other words a plaintiff cannot take advantage of the weaknesses in the pleadings or the defence.In the case at hand, the claim of the plaintiffs before the trial courts was that that the disputed road is a public road (vke jkLrk) and they were entitled to use the road and therefore the respondents must be restrained by a permanent injunction from creating any obstruction on the road. The trial court has found that the plaintiffs have failed to prove their claim. Therefore the trial court decided the relevant issues against the plaintiffs.The learned first appellate court while considering the record as also the new evidence i.e. (Ex.4) and (Ex.5) produced before the first appellate court, concluded that the conclusions of the trial court need no interference.At this stage, this court is required to look into the veracity of the conclusions of the learned courts below in the light of the evidence produced by the plaintiffs to prove their claim. The plaintiffs have examined three witnesses namely (PW/1) Harpal Singh, (PW/2) Lajja Ram Dhakad and (PW/3) Subedar Major Jaswant Singh. I have gone through the testimony of all the three witness. In his cross examination (PW/1) Shri Harpal Singh has conceded that the disputed road is situated in the Military Area, road belongs to Government of India, the road is maintained by Military Engineers Service and it is true that the whole areas is secured military area. (PW/2) accepts in his cross-examination that the road shown in (Ex.1) (map of disputed road) was constructed by Military, the whole Area Shown in (Ex.1) (within which disputed road is situated) is within Military area, this areas is surrounded by boundary wall, this area had been handed over to the Military in 1968, he did not see any record which indicate that the road was constructed by PWD. the road is used only by retired officer to have access to the facilities like credit banks, rations shops, etc. and the government offices situated in the Army area and this road is not used to have access to the city but is used only to have ingress into the Military Area. In his crossexamination (PW/3) Jaswant Singh admitted that it is true that the roads constructed in the Military Area are meant only for Military, they have been given cards (pass) for their entry in the Military Area, it is true that those who do not have pass are not permitted to enter in to military area and there is a separate road to connect the Kailash Nagar (private colony) to the city.From the above statement of the witnesses, it is apparent that disputed road is situated in the Military Area and entry through this road is subject to having a pass from the Military. Thus the road is not a free passage where public can have access without permission.Besides the above three witnesses, five documents, three before the trial court and two more before the first appellate court, have also been exhibited on behalf of the plaintiffs to prove their claim. I have gone through these documents. (Ex.1) is a site map prepared by the plaintiffs themselves to show the situation of the road. First of all this document has admittedly been prepared by the plaintiffs themselves and is not a part of any public record, therefore it cannot have any evidentiary value whatsoever is favour of the plaintiffs. Besides there is nothing in the map which may throw light on the disputed issue. i.e. whether the road shown in the map is public road and whether the public have free ingress on the road. However, the document has been produced by the plaintiffs knowingly and voluntarily, therefore as far as plaintiffs are concerned, the situation of the road may be accepted true as shown in the map. Now, the perusal of the map shows that the disputed road is situated completely within the Military area and connects the offices and facilities situated in that area and opens on public roads only at its ends. This clearly indicated that the road is and internal road of the Military area and meant for their own use to connect the offices and facilities situated on it and to have ingress to public roads whenever occasion arises. Thus the map shows contrary to what claimed by the plaintiffs.(Ex.2) is survey map but it does not indicate the disputed road.(Ex.3) is a copy of a complaint purported to have been made to the Prime Minister of India. It is mere a complaint and proves nothing in favour of the plaintiffs.(Ex.4) and (Ex.5) are the letters issued by the Army Headquarter to different cantonments reminding them of various court judgments including the judgment of the Karnataka High Court in Nitin G. Khot vs. Station Commandent, Belgaum (AIR 1998 Kar 300) and to direct that the 'public roads' situated in cantonments should not be obstructed. These documents do not help the plaintiffs for the simple reasons that these documents refers to 'public roads' in 'cantonment areas'. To take support, if any, of these documents, first disputed road has to be proved as a 'public road'. These documents say nothing about the nature of the road or about the rights of the plaintiffs.Thus, both the oral and documentary evidences produce by the plaintiffs have miserably failed to prove that the disputed road is a public road and the plaintiffs and general public have ingress on it. Contrary to it, the testimony of the witnesses examined by the plaintiffs and the documents (Ex.1) goes to so that the disputed road is and internal road of the Army and is meant for the offices and facilities situated in Army area and entry on the road is restricted only to the pass holders meaning thereby the entry of the public is based on leave and license that can be withdrawn at any time.As has been observed in the beginning, when plaintiffs have failed to prove their claim, it is inconsequential to delve upon the issue whether the defendants have sufficient evidence in respect of their ownership on the road.The learned counsel has strenuously pressed the judgment of the Karnataka High Court in Nitin G. Khot (supra) to substantiate his argument that the public have right to use the road situated in the Military area and Military cannot obstruct the use of such roads. I think it is too generalization of the ratio of the judgment. In Nitin G. Khot's case, the military had closed as many as 16 public roads passing through the Cantonment are of Belgaum. There was a clear finding of the fact in that case that the roads in question were 'public roads'. In this regard the following paragraph of the judgment is worth quoting:“14. We have also perused Annexure R-5 which shows the nature and location of the roads in dispute. The said roads are the roads linked with other main roads in the City of Belgaum and other adjoining areas. The names of the roads also indicates that they are public roads and not Army roads as claimed. The mere fact that the roads pass through the Army areas or Cantonment Board would not change their nature authorising the Army Authorities to put restrictions resulting inconvenience to the general public affecting their fundamental right of the freedom of passage as enshrined in Article 19(1) (d) of the Constitution.“ (emphasis supplied by me)In the case at hand the very nature of the road is disputed and the plaintiffs have failed to prove that the road is a 'public road' and the witnesses and documents produced by the plaintiffs, themselves indicate that the road is internal road of the Army area which is maintained by Army Engineering Services and is used to connect different offices and facilities in the Army areas and public can have access to the road subject to production of a pass issued by the Army. Thus case is clearly distinguishable on facts and does not help the plaintiffs.Both the courts below, after appreciating the oral and documentary evidence adduced by the parties have concurrently held that the plaintiffs have failed to prove that the disputed road is a `public road’. There is concurrent finding of facts recorded by both the courts below, this Court is not inclined to interfere with the same. Mr. RP Singh, learned Sr. Counsel has failed to point out any question of law much less substantial question of law being involved in this appeal.The present appeal, therefore, is liable to be dismissed and is accordingly, dismissed.

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