1960 (11) TMI 129 - HC - Indian Laws

Summary

Issues Involved:
1. Right of way and public nuisance.
2. Easementary rights of light, air, and drainage.
3. Validity of the patta granted by Thikana.
4. Necessity of Advocate General's consent under Section 91 C.P.C.
5. Delay and laches in filing the suit.
6. Grant of mandatory injunction.

Detailed Analysis:

1. Right of Way and Public Nuisance:
The primary issue was whether the land ABCD was an open plot belonging to Thikana Beda or a thoroughfare used by the residents of surrounding Mohallas. The plaintiffs established that the land was used as a passage for the people living in the four Mohallas around it. The court emphasized that long user of the land as a passage, supported by documentary evidence (pattas Ex. 2 and 3), proved the plaintiffs' case. The learned Judge's view that the plaintiffs' use was permissive was rejected as it was never the defendants' case. The court held that the plaintiffs had established their right of way as a matter of right, not permissive use.

2. Easementary Rights of Light, Air, and Drainage:
The plaintiffs claimed that the construction blocked their windows, ventilators, and spouts, which they had used for light, air, and drainage for decades. The court found sufficient evidence to support the plaintiffs' claim of easementary rights for drainage but left the issue of light and air inconclusive due to insufficient evidence.

3. Validity of the Patta Granted by Thikana:
The plaintiffs argued that the patta obtained by the defendants was surreptitious and that Thikana had no right to grant it. The court found that the pattas Ex. 2 and 3, granted by Thikana, mentioned the land as a passage, constituting an important admission binding on the defendants. The defendants' argument that the plaintiffs should have objected during the patta proceedings was rejected as patta proceedings do not decide civil rights.

4. Necessity of Advocate General's Consent under Section 91 C.P.C.:
The defendants contended that the suits were not maintainable without the Advocate General's consent as required by Section 91 C.P.C. The court held that the first suit was competent as it involved interference with the plaintiffs' private rights of easement. For the second suit, the court noted that interference with a village pathway does not amount to a public nuisance requiring Advocate General's consent. The plaintiffs had a special interest in the land, and the suits were maintainable without such consent.

5. Delay and Laches in Filing the Suit:
The defendants argued that the plaintiffs were guilty of delay and laches as the second suit was filed after a year of the first suit. The court rejected this argument, noting that the plaintiffs had promptly filed the first suit and obtained an ad interim injunction. The delay in filing the second suit was justified, and the plaintiffs were not guilty of undue delay or acquiescence.

6. Grant of Mandatory Injunction:
The court held that a mandatory injunction was appropriate given the substantial violation of the plaintiffs' rights. The defendants' construction on the land was a grave trespass, and the plaintiffs were entitled to have the structure removed. The court emphasized that pecuniary compensation was inadequate and ordered the removal of the encroachment.

Conclusion:
The appeals were allowed, the judgment of the learned Senior Civil Judge was set aside, and the trial court's decrees were restored. The defendants were given one month to remove the structure, failing which the plaintiffs could have it demolished at the defendants' expense. The plaintiffs were awarded costs throughout.