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Dharamdas Kaushalyadas Vs. Ranchhodji Dahyabhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 558 of 1920
Judge
Reported in(1921)23BOMLR1009
AppellantDharamdas Kaushalyadas
RespondentRanchhodji Dahyabhai
Excerpt:
.....in the case they succeed.' - - it might well be urged that the plaintiffs contended in their plaint that survey no. 3. that might well be redrafted by a skilled practical claim in the alternative that if this disputed as to i boundary of survey no. the evidence in the case makes it perfectly clear that the plaintiffs have been using this strip as a means of access to their survey no. we have a much larger range of vision, and the plaintiffs' case cannot be defeated merely on the ground of some technical defect in their pleadings, provided on the real issues in the case they succeed. 4. the real issue in this case is whether the plaintiffs have enjoyed for the statutory period the right of way over the strip in question. they have enjoyed the rights to that strip, the defendant has..........any rate was the limit of the land of which ho was making use. on the south of the hedge was the strip of land in dispute,. on the other side of that was survey no. 58. the plaint admittedly is not very scientifically drawn, as is often the case. it might well be urged that the plaintiffs contended in their plaint that survey no. 58, or at any rate the disputed strip, belonged to them either by title or by adverse possession, and that, therefore, they claimed the user of this strip on their own title, and consequently sought an injunction against the defendant from disturbing possession. but in paragraph 10 of the plaint it is suggested that 'the defendant asserts his land to be in the said sher of ours but the said assertion is not true. and even if it be true, he may be treated as.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs sued for a permanent injunction directing the defendant to remove the posts and wire fencing from the lane in dispute causing obstruction to the plaintiffs' user of the same The plaintiffs' suit has been decreed in both the lower Courts, and it is sought now to get those decisions reversed on a purely technical objection.

2. The plaintiffs are the owners of Survey No. 56 on the map, while the defendant is the owner of Survey No. 57. Towards the southern boundary of Survey No. 57 is a hedge maintained by the defendant, and it might be presumed that that at any rate was the limit of the land of which ho was making use. On the south of the hedge was the strip of land in dispute,. On the other side of that was Survey No. 58. The plaint admittedly is not very scientifically drawn, as is often the case. It might well be urged that the plaintiffs contended in their plaint that Survey No. 58, or at any rate the disputed strip, belonged to them either by title or by adverse possession, and that, therefore, they claimed the user of this strip on their own title, and consequently sought an injunction against the defendant from disturbing possession. But in paragraph 10 of the plaint it is suggested that 'the defendant asserts his land to be in the said sher of ours but the said assertion is not true. And even if it be true, he may be treated as having given up his boundary hedge in our favour, and by reason of our adverse possession and enjoyment of the said sher for 40 years he cannot now shift his hedge to the extent even of an inch and he has no right to do so estopped from doing so.' j.

3. That might well be redrafted by a skilled practical claim in the alternative that if this disputed as to I boundary of Survey No. 57. it has either within the ' defendant, or at any rate the plaintiff given up by the for such a period that the law would protect that user and prevent the defendant from obstructing it. The evidence in the case makes it perfectly clear that the plaintiffs have been using this strip as a means of access to their Survey No. 56. At the very most. therefore, we might order the plaintiffs to remedy the technical defects in their case by amendment of the pleadings. But, as has often been pointed out, it is not the duty of this Court to read pleadings in the District Courts as strictly as they would be read if they were filed in the Chancery Division of the Supreme Court. We have a much larger range of vision, and the plaintiffs' case cannot be defeated merely on the ground of Some technical defect in their pleadings, provided on the real issues in the case they succeed.

4. The real issue in this case is whether the plaintiffs have enjoyed for the statutory period the right of way over the strip in question. Whether in previous years they merely exercised rights of way over that strip against the true owner, or did so because they thought it had belonged to their ancestors, it does not seem to me to make very much difference. They have enjoyed the rights to that strip, the defendant has obstructed them. They are entitled to accept the defendant's contention that the strip belongs to Survey No. 57. That would not prevent them from asking the Court to protect their user of that strip. The defendant's case, therefore, in appeal, resting on purely technical objections! to the decisions of the Courts below, I think we are entitled to take a broad view of the question and confirm those decisions. The appeal will be dismissed with costs.

Shah, J.

5. I agree. I only desire to add that in both the lower Courts the case has been tried on the footing that the plaintiffs claim by way of easement the right of way over a strip of land which, according to the defendant, forms part of his land. It is no doubt true that in the plaint the plaintiffs put forward the case of ownership over this land and generally speaking that would not be consistent with the case of their having acquired an' easement over that land. But the case. has been tried on the footing of an easement, and it has been made clear before us by the admission of Dewan Bahadur Rao for the plaintiffs that they accept the position taken up by the defendant that this strip of land forms part of his land. It is, therefore, unnecessary to consider the merits of the contention urged on behalf of the defendant, that the case of easement cannot be made out where the plaintiffs put forward an allegation of ownership over that piece of land.


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