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Gatstga DIn Sonar Vs. Jagat Tiwari - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in25Ind.Cas.198
AppellantGatstga DIn Sonar
RespondentJagat Tiwari
Excerpt:
.....he has also found 'that the plaintiff objected at the earliest moment to the erection of this house and that he complained about it to dhanpatman, a harinda of the zemindar. in a case like this the decree should reserve leave to the defendants to remove their materials within a time to be fixed by the court, failing which the plaintiff should be put in possession of his land with or without the buildings, which he may pull down at his pleasure. 11. i now come to the question of the obstruction to the foot-path of the plaintiff's house by the construction of the wall complained of. where a plaintiff seeks to remove an obstruction to a public way or street it has been well settled that he must prove special damage to himself before he can maintain an action......the avail put up on plot no. 205, so as to permit the plaintiff to have access to his house by the passage land marked as no. 205. the suit was filed on 14th may 1912.2. the defence to the suit is that the land over which possession is claimed by the plaintiff is not a courtyard appertaining to the house of the plaintiff, but is a piece of waste land of the village which he has occupied with the permission of the zemindars since about eight years, that the house built thereon by the defendant has been in course of erection for about a year and a half without any let or hinderance on the part of the plaintiff, who has been a passive spectator thereof. they further allege that they have not blocked up any passage to the plaintiff's house, and urge that the claim in respect of it is.....
Judgment:

Sunder Lal, J.

1. The parties to this suit are residents of a village named Sanadra in the Gorakhpur District. Neither party has any zemindari right in the village, but both are residents occupying house sites in the village. The plaintiff owns a house in the village appertaining to which is a courtyard bearing No. 226 which has always been in his possession and occupation, and a strip of land bearing No. 205 is the passage or pathway to this house. The plaintiff's case is that he has no other passage or way for egress or ingress to his house. He alleges that the defendant has recently taken possession of the plaintiff's courtyard and has commenced to build a house on it. He has also blocked up the passage to the plaintiff's house by building a wall across, it. He sues for the possession of the land and the demolition of the constructions put upon it by the defendants. He also, prays for the demolition of the Avail put up on plot No. 205, so as to permit the plaintiff to have access to his house by the passage land marked as No. 205. The suit was filed on 14th May 1912.

2. The defence to the suit is that the land over which possession is claimed by the plaintiff is not a courtyard appertaining to the house of the plaintiff, but is a piece of waste land of the village which he has occupied with the permission of the zemindars since about eight years, that the house built thereon by the defendant has been in course of erection for about a year and a half without any let or hinderance on the part of the plaintiff, who has been a passive spectator thereof. They further allege that they have not blocked up any passage to the plaintiff's house, and urge that the claim in respect of it is altogether absurd and ridiculous.

3. Apart from the question of valuation, which was also put in issue, the Court of first instance framed four issues for trial in the following terms:

2. Is the land on which the defendants have made the disputed construction sahan (courtyard) of the plaintiff?

3. Had the plaintiff any path to his house on the land the defendants have made constructions (upon)P If so was it the only path, or he had some other path?

4. Is the plaintiff entitled to any relief, and if so to what relief?

5. Have the defendants made the disputed constructions with the consent of the plaintiff?

4. The Court of first instance found that the land in question was part of the waste land, of the village and was not a courtyard, appertaining to the plaintiff's house, that the plaintiff has another passage to his house from the north-west which joins, the public road on that side, that it was not proved that the constructions in question were erected with the plaintiff's consent and upon these findings the Munsif dismissed the suit;

5. The plaintiff appealed to the Court of the District Judge against the said decree. The appeal was heard by the Additional District Judge of Gorakhpur. The learned Judge after a consideration of the entire evidence, both documentary and oral, has found;--

(1) that the land in dispute is a courtyard appertaining to the plaintiff's house;

(2) that there is a footpath to the plaintiff's house east of land No. 226, and that foot-path has now been built upon by the defendants.

6. He has also found 'that the plaintiff objected at the earliest moment to the erection of this house and that he complained about it to Dhanpatman, a harinda of the zemindar. and Dhanpatman admits in his deposition that such a complaint was made. In fact: an injunction was issued by the Court also on 15th June 1912 preventing the defendant from going on with the building. In teeth of the opposition the defendant went on with his building and he must bear the con-sequences of his action.' Upon these findings he has decreed the claim. The defendants have preferred this appeal.

7. Mr. Haribans Sahai for the appellant has urged that the finding of the learned Judge to the effect that the land in question was part of the plaintiff's courtyard is not correct. The evidence at most showed that the plaintiff had been using a part of the village waste land for tying up his cattle etc. It did not go far enough to prove that it appertained to the plaintiff's house. In my opinion the contention of the learned Vakil on this point is concluded by the finding of fact arrived at by the Court below. In the recent partition the land has been recorded as a courtyard of the plaintiff's house and I do not see how I can go behind this clear finding of fact in second appeal. The fourth plea taken in the appeal, therefore, fails. The entry in the partition record was some evidence in the case, and though not binding and conclusive' upon the defendants, it was a relevant fact in the case.

8. Mr. Haribans Sahai has next argued that the plaintiff made no objection to the construction of the house and allowed it to be constructed at a cost of about Rs. 800. He ought not now be allowed to sue for its demolition. The issue of an injunction for the demolition of the house is a matter entirely in the discretion of the Court, and ho has argued that under the circumstances of the case, the Court ought not to have issued an injunction for the demolition of the building constructed at so much cost. In support of his contention he has relied upon the cases reported as Ganesh Singh v. Kaushal Singh A.W.N. (1900) 55, Haji Syed Muhammad v. Gulab Rai 20 A. 345 : A.W.N. (1808) 68 and the Lectures on Specific Relief delivered by Dr. Satish Chander Banerji at pages 823 and 827.

9. In dealing with this contention it must be borne in mind, in the first place, that the suit so far as this courtyard is concerned is a suit for its possession. The plaintiff is entitled to a decree for its possession. No one can by merely trespassing upon the land of another and constructing costly buildings on it claim a right to retain its possession. He has no right to compel the plaintiff to receive compensation for his land, instead of the land itself. In a case like this the decree should reserve leave to the defendants to remove their materials within a time to be fixed by the Court, failing which the plaintiff should be put in possession of his land with or without the buildings, which he may pull down at his pleasure. The rule of law on this point is thus formulated in Dr. Satish Chander Banerji's work at page 815:

Similarly, as a general rule, where a defendant has gone on without right and without excuse in an attempt to appropriate the plaintiff's property, or to interfere with his rights, and has changed the condition of his real estate, he is compelled to undo so far as possible, what he has wrongfully done affecting the plaintiff, and to pay damages. In such a case the plaintiff is not compelled to part with his property at a valuation, even though it would be much cheaper for the defendant to pay damages in money than to restore the property.... One who has gone on wrongfully in a wilful invasion of the plaintiff's right in real estate has no equity to set up against the plaintiff's claim to have his property restored to him as it was before the wrong was done.' ' The same view was taken by the Bombay High Court in Jethalal V. Lalbhai 28 B. 298 : 6 Bom. L.R. 86.

10. Of the two cases relied upon by Mr. Haribans Sahai, the first that reported as Ganesh Singh v. Kaushal Singh A.W.N. (1900) 55 was a suit by one co-sharer against the other, and the second the one reported as Haji Syed Muhammad v. Gulab Hai 20 A. 345 : A.W.N. (1808) 68 was a suit by one who was found not entitled to recover possession of the land, but had only a right of user over it. Those cases are obviously distinguishable from the present case. In any case the finding of the Court below that notwithstanding remonstrances the defendant persisted in going on with the construction of the house, leaves no room for the application of any rule of equity in his favour. So far for the claim for the possession of the courtyard land.

11. I now come to the question of the obstruction to the foot-path of the plaintiff's house by the construction of the wall complained of. Mr. Haribans Sahai has argued that the pathway in question is a public highway or street and the plaintiff is not entitled to sue for the removal of the obstruction in the absence of any allegation and proof of special injury to himself, and he has relied upon the case of Bhawan Singh v. Narottam Singh 2. Ind. Cas. 365 : 31 A. 444 : 6 A.L.J. 499 in support of his contention. The point was not taken in either of the Courts below. The defendant's own case was that he had not obstructed any passage of the defendant {vide para. 5 of his written statement of defence). It has not been found that the foot-path referred to was a public street or way. The case for the plaintiff was that the foot-path was a passage to his house. The defendant's case was that there was no passage or way there at all. Thus neither party alleged that this was a public street or way. Where a plaintiff seeks to remove an obstruction to a public way or street it has been well settled that he must prove special damage to himself before he can maintain an action. In addition to the decision of this Court already mentioned I may mention two more recent cases which take the same view, and illustrate the law on this question: Dunn v. Holt (1904) 73 L.J.K.B. 341, 68 J.P. 271 : 90 L.T. 577 : 20 T.L.R. 297 : 20 Cox. C.C. 625, Virupax-appa Fahirappa v. Sherif Sab Mulla Masud Sab 2 Ind. Cas. 494 11 Bom.L.R. 372. 'An infringement of aright which exists for the benefit of the community'' generally is subject, not of an action, but of an indictment.' (Clark and Lindsell's Law of Torts, 4th Edition, page 28). The question then is, should I, as Mr. Haribans Sahai has argued, assume that it is a public highway and deal with the question 'on that footing, or, as he has suggested as an alternative, remit an issue to find out whether it is a public highway and whether the plaintiff has suffered any special damage. If I could have come to the conclusion that the defendant's house should stand, I might possibly have been inclined to accede to the latter suggestion. But if the house is to be demolished and the plaintiff is to be put in possession of his land, there is no point in remitting issues which bear upon the wall which obstructs the foot-path. In my opinion. in view of all the circumstances of the case, as neither party urged that it was a public street, it would not be right for me to allow this question to be raised at this stage of the case and to remit the issues proposed.

12. In this view of the case I dismiss the appeal with costs which in this Court will include Counsel's fee on the higher scale. Mr Haribans Sahai has asked for six months time to demolish the house and remove the matenals. The decree of the Court below makes no provision in this respect. think the request is reasonable and in view of the fact that Rs. 800 had bean invested in this building the defendants should have a reasonable opportunity for removing the materials. I give six months for their removal by the defendants, Failing that the decree of the Court below will


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