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Bahal Singh and ors. Vs. Mohammad Yusuf and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All504; 118Ind.Cas.520
AppellantBahal Singh and ors.
RespondentMohammad Yusuf and ors.
Cases ReferredHanuman Prasad v. Raghunath Prasad A.I.R.
Excerpt:
- - on this ground also i consider that the plaintiffs have failed to show that any suit such as the present one could lie in the civil court. i consider that on the various points which i have indicated above, the suit of the plaintiffs must fail......the town of gangoh in the district of saharanpur, and they alleged that in that lane, which is a public lane, the defendants, who are muhammadans, have constructed a mosque, and that mosque encroaches on the lane to an extent which has made it too narrow for carts to pass to the houses of the plaintiffs. it is not alleged that the plaintiffs have suffered special damage otherwise which would entitle to maintain the suit for removal of the alleged encroachments. both the lower courts have made local inspections and have come to the conclusion of fact that there is no narrowing of the lane which would cause any special damage to the plaintiffs. the lane is according to the finding at least 7 feet 7 inches wide at the spot where the mosque has been built and carts can easily pass through.....
Judgment:

Bennet, J.

1. These are two second appeals by the plaintiffs whose suit for removal of certain alleged encroachments have been dismissed by the two lower civil Courts The plaintiffs are residents in houses in a certain lane in the town of Gangoh in the District of Saharanpur, and they alleged that in that lane, which is a public lane, the defendants, who are Muhammadans, have constructed a mosque, and that mosque encroaches on the lane to an extent which has made it too narrow for carts to pass to the houses of the plaintiffs. It is not alleged that the plaintiffs have suffered special damage otherwise which would entitle to maintain the suit for removal of the alleged encroachments. Both the lower Courts have made local inspections and have come to the conclusion of fact that there is no narrowing of the lane which would cause any special damage to the plaintiffs. The lane is according to the finding at least 7 feet 7 inches wide at the spot where the mosque has been built and carts can easily pass through it as the lower appellate Court observed at the time of inspection. This finding is a finding of fact, and no authority has been shown to this Court by the learned Counsel for the appellants that such a finding of fact can be called in question in second appeal in this Court. Reference was made in the first ground of appeal to the ruling Hanuman Prasad v. Raghunath Prasad A.I.R. 1924 All. 715 on which the plaintiffs desired to base their case, and it was alleged that the lower Courts had construed this ruling too narrowly. That ruling, however, has no application whatever to the present case. That ruling was in regard to a suit brought by plaintiffs who alleged that they had acquired by prescription a right of way over certain ground, which was originally private property and which had been sold to the defendants who proceeded to erect a house on it and interfered with the right of way acquired by the plaintiffs. In the present case the lane is a public lane in a town, and it is not alleged that it was ever private property. I am of opinion that Section 4, Act 5 of 1882 (the Indian Easements Act) does not apply to a public lane, and that the plaintiffs did not acquire a right of easement over a public lane. It cannot be said that a lane is a servient heritage over which the plaintiffs acquired a right of easement. No doubt persons may acquire a right of way over Government property which is held by Government for private enjoyment or use, but I consider that in the case of Government property held for public use such as a public street where the public are intended to pass, the passing of the public does not confer a right of easement on the public. Otherwise members of the public could bring suits against any Municipal Board when a street is closed or altered. On this ground also I consider that the plaintiffs have failed to show that any suit such as the present one could lie in the civil Court. There is a proper procedure where encroachments are alleged to occur on a public street or lane and action is taken by or on behalf of Government against the persons who make those encroachments No authority whatever is shown to this Court for the proposition that private persons who merely happen to reside in houses situated in a public lane can sue for alleged encroachments in that lane. It is on this point that a distinction arises from the case of Hanuman Prasad v. Raghunath Prasad A.I.R. 1924 All. 715, a case where the plaintiffs had themselves acquired a right of easement over private land. I consider that on the various points which I have indicated above, the suit of the plaintiffs must fail. Accordingly I dismiss these second appeals with costs.

2. In Second Appeal No. 1811 there is filed a cross-objection on behalf of respondents. This, however, has been very unfortunately worded. It is intended to be on behalf of the respondents but is signed by 'counsel for the appellants.' It is intended to ask for costs for the respondent-defendants but actually asked for costs for the plaintiffs. Further an objection is taken in regard to the lower appellate Court not having granted plaintiffs costs of the trial Court. Now whatever the merits of that objection, it should have been taken by way of cross-objection by the defendant-respondents to the lower appellate Court. No such cross-objection was taken. It is true that after the order in appeal an application in revision was filed which was refused. But I consider that the matter is now time barred, because it was not taken at the proper time before the lower appellate Court by way of cross-objection. I therefore refuse this application for costs of the trial Court to the defendant-respondents.


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