Skip to content


Fatehyab Khan and ors. Vs. Muhammad Yusuf and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All434
AppellantFatehyab Khan and ors.;fatehyab Khan and ors.
RespondentMuhammad Yusuf and anr.;muhammad Yusuf and anr.
Excerpt:
.....below, that portion of the decree which is complained of is not meant to be a declaration of a right in the defendants to build. amir-ud-din's clients must fail, and the decree of the court below must be affirmed, that decree being that the courtyard must be brought back to the same condition which it was in before, and the defendants to be prevented from building a pacca erection. he contends that the obstruction complained of is an obstruction of a public right, and that the plaintiffs had not shown such special damage as would entitle them to bring their action in a civil court; it was more like a place over which certain persons had a right of way as appurtenant to their dwellings. it appears to me that the defendants in creating this building must have known perfectly well that..........below, that portion of the decree which is complained of is not meant to be a declaration of a right in the defendants to build. the judge merely says he decrees the claim, but qualifies his decree by saying that the decree will not operate as an interference with the rights of the parties to have a similar thatched building set up as had existed in former times. i do not think this case comes within the rule laid down by the privy council in the case referred to. it appears to me for that reason that this appeal of mr. amir-ud-din's clients must fail, and the decree of the court below must be affirmed, that decree being that the courtyard must be brought back to the same condition which it was in before, and the defendants to be prevented from building a pacca erection. the appeal.....
Judgment:

John Edge, Kt., C.J.

1. In this case the plaintiffs, whose residences adjoin or are close to the place which has been found to be a courtyard, brought their action against the defendants to obtain the removal of a building which had been erected by the defendants, and which was an obstruction to the right to use the courtyard which the plaintiffs had enjoyed. The lower appellate Judge has found that the land in question on this building was erected, had been left unoccupied to serve as the courtyard of the mohulla, and did not belong either to the plaintiffs or the defendants. The lower appellate Judge decreed the claim; and it is said now that in the decree he incorporated a decree in favour of the defendants, and on that ground the present appeal is brought by the plaintiffs, They rely upon the judgment of the Privy Council in the case of The Official Trustee of Bengal v. Krishna Chunder Mozoomdar, L. R., 12 I. A. 166.

2. In order to understand that decree it is necessary to bear in mind certain facts. It appears that on a part of the land where this building is erected, there had formerly stood a thatched building which had been used by all those persons entitled to use the courtyard for the purpose of sitting under. As I read the decree of the Court below, that portion of the decree which is complained of is not meant to be a declaration of a right in the defendants to build. The Judge merely says he decrees the claim, but qualifies his decree by saying that the decree will not operate as an interference with the rights of the parties to have a similar thatched building set up as had existed in former times. I do not think this case comes within the rule laid down by the Privy Council in the case referred to. It appears to me for that reason that this appeal of Mr. Amir-ud-din's clients must fail, and the decree of the Court below must be affirmed, that decree being that the courtyard must be brought back to the same condition which it was in before, and the defendants to be prevented from building a pacca erection. The appeal is dismissed with costs.

3. In the cross-appeal, S. A. No. 433 of 1886, in which the defendants are the appellants, several points have been raised by Mr. Kashi Prasad. He has referred us to Karim Baksh v. Budha I. L. R., 1 All, 249; Gehanaji v. Ganpati I. L. R., 2 Bom., 469, Indian Penal Code, Section 268, the Criminal Procedure Code, Section 133 and Uda Begam v. Imam-ud-din I. L. R., 1 All., 82. His first contention is that this action cannot be maintained. He contends that the obstruction complained of is an obstruction of a public right, and that the plaintiffs had not shown such special damage as would entitle them to bring their action in a Civil Court; and he relied on the fact that, under the Criminal Procedure Code, a remedy was provided for cases where a public right is interfered with. In my opinion the courtyard was a public place only in this sense, that it was the courtyard of the persons who dwelt in the mohulla. As I read the judgment of the Lower Appellate Court, there was not here what is known as a public right of way. It was public only with regard to the people dwelling in the mohulla, and for persons going to and from the houses in the mohulla. It appears to me that no other people had a right to go there and use it. It was more like a place over which certain persons had a right of way as appurtenant to their dwellings. There is nothing in the law to prevent a civil action being brought in respect of an interference with a private easement.

4. Mr. Kashi Prasad's other point is that there was an issue here which was not disposed of by the Lower Appellate Court. That was as to whether there had been acquiescence on the part of the plaintiffs so as to disentitle them from bringing the suit. I think that the law of acquiescence is very ably explained in the case of Uda Begam v. Imam-ud-din I. L. R., 1 All., 82, and there I find it stated, with reference to the judgment of Lord Chancellor Cranworth and Lord Wensleydale in Ramsden v. Dyson, L. R., 1 H.L. 129; 121 Jur., N. S. 506; 14 W. R., 926, that 'if a stranger builds on the land of another, supposing it to be his own, and the owner does not interfere, but leaves him to go on, equity considers it dishonest in the .owner to remain passive, and afterwards to interfere) and take the profit.' So far as that passage is concerned, it is obvious that it turns upon the question as to whether or not the person building had reasonable grounds for supposing that the place was his own land. The passage continues: ' But if a stranger builds on the land of another knowingly, there is no principle of equity which prevents the owner from insisting on having back his land with all the additional value which the occupier has imprudently added to it; and Lord Wensleydale added that, if a tenant does the same thing, he cannot insist on refusing to give up the estate at the end of the term. It was his own folly to build.'

5. It appears to me that acquiescence cannot possibly arise here. It is not suggested that there was any evidence that these plaintiffs had given their actual consent to the building; and the only evidence of the acquiescence can be that they did not immediately protest. It appears to me that the defendants in creating this building must have known perfectly well that they were building upon a courtyard which their neighbours had a right to use. I cannot see that there is any principle of equity as to acquiescence involved in this case. This is not a case in which we should send back an issue as to whether there was acquiescence or not. I concur with the view of the Lower Appellate Court, and I think that this appeal must be dismissed with costs.

Brodhurst, J.

6. I concur with the learned Chief Justice in dismissing both the appeals with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //