Guman Mal Lodha, J.
1. This is a typical case where a piece of land which is alleged to be part of the public street in the city of Jodhpur was sold by allotment by the Allotment Committee of the Municipal Council, Jodhpur. The most curious aspect of the case is that this allotment was done if at all it was done in such a manner which raised several questions about its genuineness. In view of the above two salient features of the case, namely, the land being alleged to be part of public street and the allotment being of alleged suspicious nature I have heard the second appeal at length and perused the documents and evidence shown to me by the learned counsel for the parties.
2. The brief facts of the case are that: The plaintiff-appellant filed a suit for permanent injunction against the defendant-respondent Narpat Karan. It was alleged that the house of the plaintiff and respondent No. 1 are situated inside Siwanchi Gate, Jodhpur. There is an open gali in between them which is a Khalsa land which has been used for ingress and egress. Portion ABCD marked in the site plan annexed to the plaint was secretly allotted in the name of the defendant Narpatkaran by the Municipality under collusion. The plaintiff made efforts to get it cancelled but he could not succeed. It is alleged in the plaint that the allotment was refused on 30-7-1960 but later on some members of the Municipal Committee in collusion with the defendant got the land allotted and granted permission to make construction thereon. The plaintiff's case is that if the constructions are raised the carts and trucks would not be able to reach the plaintiff's four Kotharies that exist there for keeping his grains etc. The defendant's has collected the material for construction so the plaintiff filed the suit.
3. Defendant Narpatkaran has contested the suit alleging that the allotment in his name was not illegal. The land in question was allotted to him by majority of votes and in accordance with the provisions of the Municipalities Act. He has further alleged that the plaintiff had no right to object the allotment and no damages are caused to him by construction over it as 14' wide land is already left for coming and going to the plaintiff's property. Plaintiff's Kotharies are not used for storing grains etc. No damage is caused to plaintiff in any manner. It is also alleged that plaintiff's suit is not maintainable unless the allotment is set aside. Defendant No. 2 Municipality also contested the suit on the same ground. On the pleadings of both the parties, the following issues were framed by the lower court:
(1) ... ... ...used as a passage in between the house of the plaintiff and defendant No. 1 (P).
(2) Whether four 'Kothas' of Dhan of the plaintiff are situated in this land, and whether the plaintiff has been using this land peaceably and without any interference and what is its effect on the suit ?(P);
(3) (a) Why the allotment order dated 30-7-1960 is ineffective ?(P);
(b) How this court has power to inquire into and decide matter (P).
(4) How the plaintiff is entitled to the grant of a permanent injunction against the defendant for restraining him from raising any construction on ABCD land (P);
(5) Whether the value of this land is Rs. 500/- and the plaintiff ought to pay court fee on Rs. 500/- (P);
(6) Whether the plaintiff has made some alteration in the suit previously instituted by him which was withdrawn by him and as such, this suit is liable to be dismissed (P);
(7) Whether this suit is not maintainable till the time, the plaintiff gets a declaration of his rights mentioned in para 5 of his plaint from a competent Court ?
4. After recording the evidence and hearing the parties the Munsif dismissed the plaintiff's suit and the plaintiff went in appeal. The learned appellate court disposed of appeal on 14-5-1966 but 2nd appeal was preferred to the Hon'ble High Court and the appeal was remanded to elaborately discuss the evidence regarding two material questions:
(1) Whether it has been established from the evidence that the public had a right to use the lane including the land in dispute ?
(2) Whether the land ABCD marked on the plan attached with the plaint had been allotted by the Allotment Committee of the Municipal Council, Jodhpur in favour of the defendant appellant ?
The Hon'ble High Court has observed that the court yet has to consider the evidence led by either side and then decide whether the majority of Members had allotted the land to the defendent or its allotment was refused.
5. Unfortuately even after the remand by the Hon'ble Hight Court the parties have not clarified many issues which have become obscure but are material and relevant for the decision of this important case which assumes importance for civic life and civic rights of citizens under the Municipal laws.
6. I have heard learned counsel for the parties at length. I am of the opinion that the plaintiff's pleadings are sightly defective in as much as although the plaintiff used the following words for asserting the public right ij eq>s edku ds vf/kdkj gS fd vkidh tehu vkbZ gqbZ gS ;g tehu vnhe ls leL;k vkSj bl le; ls dke tkjh gS A
From the above it would appear that the plaintiff wanted to assert only personal rights and gave an impression that both the parties were using this Government land and, therefore, it cannot be exclusively allotted to defendant.
7. However, as the case has emerged during the evidence and submission of various documents it is now seriously alleged that the land in question is a part of public street as defined in sub-cluause (26) of the Rajasthan Municipalities Act, which reads as under:
Public street' means any street:
(a) over which the public have a right of way; or
(b) which has here to fore been levelled, paved, metalled, chanelled, sewered or repaired out of Municipal or other public funds: or
(c) which, under any provision of this Act, becomes a public street.
8. If the above land in dispute becomes part of public street it is obvious that it cannot be allotted or sold by the Municipal Council. It is well known that public streets are maintained by the Municipality for the citizens' welfare for various purposes of ingress and outgrees, for traffic, for way, for sanitation, for light and air to the adjoining houses or shops, for water pipes fittings, for fixing electric lamp posts or other Lamps Post, or sewerage etc and these civic rights cannot be alienated by any Committee of the Municipality as they are unalienab|e. The whole civil life depends upon proper maintenance of public roads, public streets, public sanitation, public light facilities, public sanitry facility etc. Obviously, if this land is held to be a public street, unless the Municipality by a proper procedure provided under law first takes steps to take it out side from the purview of public life on valid reasons no allotment or sale can be done and no encroachment can be allowed.
9. Contrary to it if it is no part of the public street and there are only private rights of easement by prescription or easement of necessity whatever it may be.
10. In my opinion, inspite of the fact that the case came up to this Court earlier and was remanded, this aspect was not properly brought to the notice of the Court. In view of the above, Mr. Mathur rightly prayed that he may be allowed to amend plaint to clarify that the land in dispute is part of public street which should not have been allotted at all by the Municipal Authorities.
11. The second important aspect of the case is that even the allotment of the land by the allotment committee is full of question-mark if for one there are two judgments of the allotment committee Exs. land 1A; secondly, it is not clear from evidence so far produced whether the members who became party to Ex. A 1 the judgment by which allotment was made to the defendant were present during hearing and if they not present in what manner they signed this order.
12. During the course of arguments both the learned counsel submitted that the procedure for conduct of business to allotment committee is regulated by Section 70 read with Section 76 of the Rajasthan Municipalities Act.
13. Section 76 as it was in force at that time reads as under:
The provision to clause (6), (11), (12), (13), (14) and (21) of Section 70 shall be complied with in all proceedings of Committees as meeting of the Committees were included in all references to meetings of Board contained in these provisions.
Clause (4): No meeting shall be transacted at any meeting committee unless 1/2 of the Numbers of committee present thereat.
Section 70 clause (11): Minutes of the names of the Members if any present and the proceedings at such general meeting shall be kept in a book provided for this purpose shall be signed by the presiding authority of such meeting.
14. Mr. Mathur submits that in view of the above only a Presiding Officer Mr. Mohanani was required to sign and, therefore, his version should be accepted. Mr. Bhandari on the contrary submits that whether the members were present or not can be known only from the proceedings of all the minutes book where names are recorded and in the absence of that Ex. A. 1 should be treated at authentic document on the assumption that all Members who signed it were present. He further submits that Shri Ramsingh Advocate has appeared as witness and submitted that he was present but the learned Judge has only held that he was not present.
15. In my view the above complicated and little obscured situation regarding the presence of the Members in the allotment committee, that Ex. 1 and Ex. 1 were signed, can be clarified by production of the minute book which is required to be kept as per Sub-rule (11) of Rule 78 which applies as per the joint submissions of learned counsel for the parties.
16. The whole consideration of the appellate court can be appreciated only after it is found as a matter of fact as to which members were present when the allotment committee's meeting took place and when Ex. 1 and 2 were dictated and signed.
17. Again it has to be clarified by evidence and adjudicated upon by the trial court whether the members who signed Ex. A. 1 the order of allotment of this land to the defendant were present in this meeting and if not whether there was any procedure prelevant by which they could have passed any order after the meeting even without attending the meeting and whether it can be permitted in view of the second existing provisions of the Municipal law at that time.
18. I must observe that both the points are of importance in view of the fact that civil rights not only of the parties in this case but of the persons who are residents of particular area are also involved for its allotment if it is held that this land was a part of public street.
19. In the interest of justice and for effectively adjudicating the controversy between the parties I am therefore adopting the request of Mr. Mathur to permit him to make amendment in the plaint by adding that the disputed land was part of public street in suitable words and then provide an opportunity to defendant to file additional written statement. Fresh issues then be framed as additional issues and the procedure to lead additional evidence should be allowed to both the parties in respect of both oral and documentary evidence.
20. The trial court should then decide the entire case afresh according to law.
21. The result of the above discussion is that this appeal is accepted as indicated above, the judgments of both the court are set aside and the suit is remanded to trial court to proceed according to directions given above. The amendment should be made within a period of three months from today. The parties shall bear their own costs throughout so far.