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TMI Blog1960 (11) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... were in the first instance Chhoga and his sons Kapura and Jawana, and the Kamdar of rhikana Beda. The case of the plaintiffs in this suit as disposed in the amended plaint, briefly put, was that in between the two houses of Moolchand and Dharamchand there was a common way the exact phrase used in Hindi is ^^vkejkLrk** over the and A.B.C.D. and that the defendants had raised a construction on it on the 18th September, 1949. The result of this, according to the plaintiffs, was that two ventilators in the first storey and two big windows and a nali (spout to drain out water) n the second storey of plaintiffs Nos. 1 and 2 had seen blocked. With respect to the house of plaintiff No. 3, it was similarly alleged 'that two windows and two ventilators in the' first storey and Two, big windows and a spout in the second storey had been closed. The case of the plaintiffs Nos. 1 and 2 further was that they had been in enjoyment of light and air from the windows and the ventilators aforesaid and so also they had been using the spout for draining out water from their house; for a period of 80 years without interruption while the case of plaintiff No. 3 was that he had been in similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his son Jawarmal and Dharam Chand who are immediate neighbours of the suit land. 3. A second suit with respect to this very land was also filed subsequently by Girdhari Lal and three others as representatives of the residents of Mohallas Sisodiya, Nawapura and Gogajikigali and Gogaji-ka-bas and this was suit No. 648 of 1952 which has given rise to appeal No. 44 of 1955. It may 'be pointed out that Moolchand who was plaintiff in the first suit is also a plaintiff in the second suit. The case of the plaintiffs in this suit was that the land ABCD was being used by the residents of the aforesaid Mohallas for purposes of way from time immemorial and that they had also been making use of this way on occasions of marriages, deaths etc. without interruption and obstruction of any kind. This suit was brought against n defendants and of these Chhoga and his sons were defendants Nos. 1 to 3 and Thakur Jagajitsingh of Beda was defendant No. 4 and the remaining defendants from 5 to II were the other residents of Beda who were sued as representatives of Vaishnava community under Order 1, Rule 8 of the Code of Civil Procedure. Their case was that the passage over the land ABCD of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thikana in the name of the latter, It was further contended that when the defendants raised the construction which they did on the land ABCD, and this construction had been intended for religious purposes, the plaintiffs or the other residents of the Mohallas aforesaid did not raise any objection whatsoever and, therefore, they were estopped from bringing the present suit. Yet another plea was raised to the effect that as the plaintiffs' case was with respect to an obstruction on an alleged public high-way by the defendants, the Advocate General was a necessary party and the present suit could not have been brought save by him or at any rate without his consent in accordance with the provisions of Section 91 C. P. C., and, therefore, the present suit was not maintainable. Finally, it was contended that even if the Court came to the conclusion that the plaintiffs' right of way over this land was established and that some kind of injury or damage was caused to them by the sale of this land, even then as the defendants had started their religious activities in the building which was objected to, and any interference with the same was likely to wound their religious suscept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I emphatically disagree with this finding for the simple reason that it was never the case of the defendants that the use which the plaintiffs, or those whom they represented, made of the land in question was permissive. It was not open to the court below to make out an entirely new case for any of the parties which they themselves did not put forward. As respects the question whether such long user was as of right or not, it is a matter which would primarily depend on the facts and circumstances of each case and of course no universal rule can be laid down that long user by itself must necessarily be as of right or inexplicable on any other reasonable hypothesis. 13. And this brings me to the consideration' of very important evidence consisting of the two documents, namely, Exs. 2 and 3 which throw a flood of light on the whole question. Ex. 2 is a patta relating to the house of Kapoorchand Poonamchand, Kapoorchand being the father of Dharamchand plaintiff No. 3 in the first case. There is no valid reason to suppose that this patta does not relate to Dharamchand's house although it would have been certainly preferable if Dharamchand himself had come and produced' it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se pattas were obviously granted by the Thikana Beda. The mention of a rasta over the land which is in dispute in this case constitutes therefore an important admission on the part of the Thikana that the land lying to the northern side of Moolchand's house and the southern side, of Dharam Chand's with which we are concerned in the present case was a rasta. This admission is a very strong piece of evidence, and it cannot but bind all those who derived their title from the Thikana as the other defendants did in the present case. The oral evidence, therefore, led by the plaintiffs receives valuable support from these two documents. I am, therefore, unhesitatingly of the opinion that the view of the learned Judge that the plaintiffs have failed to prove that they were making use of the land in question as passage as of right is an entirely mistaken one. The learned Judge seems to have laboured under the impression that this description of boundaries in the pattas was not enough to show that it was a dedication for the public at large or that the inhabitants of the four Mohallas had been using it as of right . Now it clearly seems to me that the approach of the learned Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hod by which the acquisition of a right of way on open Khalsa land can be rendered possible. Such a right, for instance, is capable of being acquired by grant from the owner of the land by the persons living in the close proximity thereof, and if it is established that a right of way was so granted, then it cannot be any legitimate argument to hold that it does not exist in the case of such land because no dedication was pleaded or proved. Again, a right like this may also be acquired as a customary right or as a prescriptive easement. So also, where a long open user of a public way is proved, a presumption does seem to me to arise in the absence of circumstances negativing it that the user was of right. As I have shown above, there is overwhelming evidence, direct as well as circumstantial, to show that the people living alongside the land in dispute, and, in the surrounding area, have been using this land as a passage since time immemorial, and this use in the circumstances of the case, in my considered opinion, clearly amounts to use as a matter of right, and there is no legitimate foundation for the argument that it was permissive. For these reasons, I find myself in complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate General. 16. In support of his argument, learned counsel has strenuously contended that the dispute between the parties relates to a common village pathway and not to a public highway and that an obstruction to the former does not amount to a public nuisance within the meaning of that expression as used in Section 91 C. P. C. I have been referred in this connection to a large body oi rulings which have taken that view. Thus in Chuni Lall v. Ram Kishen Sahu, ILR 15 Cal 460 (FB) and Harish Chandra v. Harish Chandra, AIR 1923 Cal 622, it was held that it is only in the case of a public highway that the question of special damage arises; but where the case is one of a village pathway, no such question of a Special damage would arise. See also Harihar v. Chandra Kumar, AIR 1919 Cal 123, Pran Nath Kundu v. Emperor, Bibhuti Narayan v. Mahadev Asram, AIR 1940 Pat 449, Dalgobinda Mahatha v. Khatu Mahatha, AIR 1948 Pat 183, Faqir Chand v. Sooraj Singh, Subbamma v. Narayanmurthi, AIR 1949 Mad 634 Murugesa v. Arunagiri, AIR 1951 Mad 498 and Nagireddy v. Lingareddi, AIR 1956 AP 235 in support of this view. The principle deducible from these cases seems to be that where the wrong compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cannot possibly be a public nuisance within the meaning of section 91 read with Clause 48 of Section 3, of the General Clauses Act with respect to the infringement or injury to a village pathway seems to me, with utmost respect, for the eminent Judges who have taken that view, to be not free from a certain amount of doubt or difficulty having regard to the state of law as it exists in our country. I shall, therefore, not pursue the above line of argument further and will proceed on the assumption for the purposes of this case that the way claimed by the plaintiffs was a public right of way and, therefore, a substantial interference with it would amount to a 'public nuisance' within the meaning of section 91 Civil Procedure Code. 17. Even so, the question has to be answered whether the second suit could have been brought by the plaintiffs without the consent of the Advocate General. Section 91 of the Code of Civil Procedure is in these terms: - 91. (r) In the case of a public nuisance the Advocate General or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable at the instance of the plaintiff without proof of special damage. In second appeal it was strongly contended before the High Court on behalf of the plaintiff that after the decision of the Privy Council in AIR 1925 PC 36 (supra) it was not necessary for an individual bringing a suit in respect of a public nuisance to allege and prove special damage, and it was further contended that in any case special damage had been proved. Both these contentions were repelled by the High Court. The ratio of the judgment of his Lordship was that the case before him was not properly governed by the judgment of the Privy Council inasmuch as it related to the right of the members of a particular sect or religion to prevent obstruction by a rival group to use a highway for religious processions. There was a conflict of opinion on this point as already stated between the decisions of the Bombay High Court which took the line that to sustain a suit by a, body of persons for the establishment of their right to use the highway in such cases, proof of, special damage was necessary while the decisions of the Madras High Court favoured the view that, such a right to use the highway was a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is not a case of a mere public nuisance as such and the injury in the suits before me even if it affected the rights of the public generally, essentially amounted to something more than a public nuisance and special damage has been clearly alleged and sought to be proved. The Calcutta case can therefore be of no help to the defendants. 20. I would next refer to the Full Bench decision of the Bombay High Court in Chandu Sajan v. Nyahalchand, AIR 3950 Bom 192 . The question before the Full Bench was whether a civil suit could be brought without the consent of the Advocate General to establish a right to carry a non-religious procession through a public street. The suit in which this question arose had been brought for a declaration without any allegation as to special damages. Chagla, C. J., who delivered the judgment of the Full Bench after discussing a large number of cases to which I need not refer laid down that it was difficult to see any distinction on principle between the right of conducting a religious procession along a public thoroughfare as upheld in AIR 1925 PC 36 (supra), and the right of conducting a non-religious procession, as the right in either case depende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the side of a house also. 25. Again in AIR 1948 Pat 183 (supra), it was held that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section should be deemed to have suffered loss without proof of such loss and that no special damage need be proved in such a case, and it would suffice if it is shown that a particular section of the public has been deprived of certain advantages which it has enjoyed for a long tune. 26. Now from the aforesaid review of case law, the principle deducible is this, and, with all respect, it seems to me that the various decisions to some of which reference has been made above and there are undoubtedly others to which I have not referred can all be more or less reconciled on this principle. The real test as to whether a suit of this or similar nature is maintainable without proof of special damage is to find out whether the suit pertains essentially to the removal of a public nuisance only, that is, of a common injury which the plaintiff or plaintiffs suffers or suffer as much as the rest of the community or the public and no more substantially over and above the injury or inconven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic nuisance as such. This suit therefore falling as it does under Sub-section (2) of section 91 Civil Procedure Code was and is certainly competent without the consent of the Advocate General. And the only pertinent question is whether the plaintiffs have proved their case on the merits. Having regard to the discussion of the evidence in this suit made above, I am clearly of the opinion that the plaintiffs in this suit are immediate neighbours of the land in dispute and could not but be put to palpable inconvenience and serious discomfort because of the encroachment on their customary right of way alongside their houses -- a right which had been vouch-safed to them by the Thikana itself, vide pattas Exs. 2 and 3 and therefore could not be taken back at its sweet will and pleasure. Next as to the right of drainage: (After discussion of evidence in this respect His Lordship proceeded:) That being the real state of evidence, I am surprised that the learned Judge below should have felt persuaded to conclude that there was no evidence whatever to show that the obstruction to the spouts was or would be a source of damage. The evidence on the other hand definitely was that by the obst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiffs should have proved special damage in these cases. In that event also, I feel disposed to hold the opinion that, in the first suit, they have proved a grave violation of their right of drainage as also an equally grave breach of their right of way which was of special utility to them being neighbours in immediate vicinity thereof; and, in the second suit, the plaintiffs have established that after this customary way has been closed, those living in the Sisodiya-ka-Bas and intending to go to the Gogaji-ki-Gali or Gogaji-ka-Bas or Nawapura Bas or vice versa have to make a very considerable detour (via Sutharon-ka-Bas), and there is authority for holding that even this would amount to special damage. See Md. Raza Khan v. Md. Askari Khan, AIR 1924 All 599. I may pause for a moment to point out that some attempt seems to have been made on the side of the defendants to show that an alternative way for the residents of these Mohallas is possible or has been in use from over the land shown as IJKL on the plan Ex. 1; but the plaintiffs' witnesses have clearly stated that this land belongs to private individuals and the matter has not been pursued further so as to enable the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State among other requirements by less than sixty years' user. I have carefully considered this contention and do not feel disposed to accede to it. The short answer to this contention, in my opinion, is that, in the matter of sale of abadi lands in their Jagirs the Jagirdars in the former State of Jodhpur from which area this case arises, always claimed and were accepted to be the owners of such land, and it is on the strength of this ownership that they used to sell abadi lands in their jagirs without let or hindrance and appropriated the proceeds thereof. Call this custom or anything else you may like, this practice was notorious and too well established to admit of any controversy. And it was in pursuance of this State-wide custom that the Jagirdar here sold the land in dispute to Chhoga and then to the Vaishnava public as in countless other cases Jagirdars did the same within their Jagirs. In these circumstances, I have no doubt that the period of sixty years, which has been laid down as a sine qua non for the acquisition of a right against the Government, cannot possibly be held to be applicable to the case of a Jagirdar who most certainly could not be equated with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the building was erected on the 18th September, 1949, whereas the second suit was instituted on the 27th October, 1950. This delay was sought to be explained by the plaintiffs in the second suit on the ground that the plaintiff Moolchand (who let it be remembered is a plaintiff common to both the suits) and Dharamchand had filed a suit earlier on the 12th September, 1949, when the disputed land was lying open and a temporary injunction had been issued by the Court against the original defendants in that case soon afterwards and yet construction had been raised on it. The learned Judge found that this explanation was unsatisfactory because according to him the previous suit was based on easement by prescription, and that, in any case, if that suit was sufficient, there was no necessity to bring a second suit. With all respect, I am entirely unable to ac cept the approach of the learned Judge as correct. As soon as the plaintiffs Moolchand and Dharamchand apprehended an invasion of their rights they immediately brought a suit on the i2th September, 1949, and be it noted that until then nothing had been built on the land in dispute. These plaintiffs had applied for and obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consequences on mere sentimental grounds. To my mind, a case like this peremptorily calls for a restoration of the original position which existed before the encroachment was made. 33. I should like to point out at this place that I am fully conscious that a mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it where a case for grant of this relief is otherwise made out. Such delay, however, to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. There can be no question of any of these circumstances in the instant suits for the first suit had been brought by the plaintiffs there before any structure was at all built on it and the delay even in the bringing of the second suit cannot be characterised in the circumstances as amounting to any of these things in view of the fact that the first suit had already been brought and plaintiff Moolchand is a common plaintiff to both the suits and an ad interim injunction had been applied for and passed. A further principle to bear in mind is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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