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Gorelal and anr. Vs. Mulua - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 73 of 1975
Judge
Reported inAIR1980MP73
ActsCode of Civil Procedure (CPC) , 1908 - Sections 91
AppellantGorelal and anr.
RespondentMulua
Appellant AdvocateN.K. Jain, Adv.
Respondent AdvocateAkhil Shrivastava, Adv.
DispositionAppeal dismissed
Cases ReferredRamabrahma Sastri v. Lakshminarasimham
Excerpt:
- - the plaintiff also alleges that the door was used for taking his cattle as well as this was an access for him to the village pathway and as it was closed, he is suffering inconvenience. wrongful obstruction by unauthorised construction amounts to infringements of the rights which the residents of the village enjoyed, and these infringements cause them special damage. that sketch clearly proves the case of the plaintiff......infringements cause them special damage. even if the plaintiff loosely described the passage as public pathway and even if the passage running through the village was considered as a part of the longer route extending beyond its precincts it is so far as the village itself is concerned, only a village path, in which residents of the village and neighbourhood are directly interested. the residents of the village can claim special amenities not open to those others in respect of that part of the passage which ran from one end of the village to the other.' similarly, i may refer to ramabrahma sastri v. lakshminarasimham, air 1957 andh pra 44. it also deals with a case of public nuisance. it is held in that case as under:--'a road is either public or private. aroad or a street whose user.....
Judgment:

A.R. Navkar, J.

1. This is an appeal against the judgment and decree passed by the Additional District Judge, Guna in Civil Appeal No. 100-A/70, confirming the judgment and decree passed by Shri N. K. Jain, Civil Judge Class II, Guna in Civil Suit No. 62-A/65.

2. The facts of the case, briefly stated, are that the plaintiff-respondent filed a suit for permanent injunction and demolition of a wall against the defendant/appellants. The plaintiff alleged that there was a partition between him and his brother Puran and in the share which fell to his brother, there was a door opening towards the eastern side which was used by him as a passage, but after partition, plaintiff opened a door on the northern side which opens towards the village pathway. It was alleged that on 12-9-1965, the defendants constructed in front of the door a Chabutara and thereby obstructed the way. The plaintiff also alleges that the door was used for taking his cattle as well as this was an access for him to the village pathway and as it was closed, he is suffering inconvenience.

3. The defendants contested the suit. The fact of partition between the plaintiff and his brother was denied. It was also said that the opening of the door on the northern side was illegal and that the land in front of the door was not a public path, but it belonged to the defendants. The defendants also asserted that the construction is already completed and that construction is on their own land and as such, the plaintiff has no right to demolish it. It was also submitted that Section 91 of the Code of Civil Procedure is applicable to the present case and unless and until the permission of the Advocate General is taken for filing the suit, the suit itself is not competent.

4. After taking evidence, the trial Court decreed the suit. There was an appeal. The appeal also met the same fate. This is a second appeal.

5. The first submission made before me was that the case is covered under Section 91 CP.C. and as no permission was taken by the plaintiff from the Advocate General, the suit is incompetent. I do not accept this proposition of the learned counsel. If the case is with respect to public nuisance or wrongful act affecting or likely to affect the public, then in a suit for declaration and injunction permission from the Advocate General is necessary. It is not a case of public nuisance or other wrongful acts affecting the public. In Sri Ram Singh v. Patti, AIR 1968 All 18, it was held as under:--

'A village pathway is not a public highway and no special damage need be proved in a suit for removal of an obstruction to the former. Wrongful obstruction by unauthorised construction amounts to infringements of the rights which the residents of the village enjoyed, and these infringements cause them special damage.

Even if the plaintiff loosely described the passage as public pathway and even if the passage running through the village was considered as a part of the longer route extending beyond its precincts it is so far as the village itself is concerned, only a village path, in which residents of the village and neighbourhood are directly interested. The residents of the village can claim special amenities not open to those others in respect of that part of the passage which ran from one end of the village to the other.'

Similarly, I may refer to Ramabrahma Sastri v. Lakshminarasimham, AIR 1957 Andh Pra 44. It also deals with a case of public nuisance. It is held in that case as under:--

'A road is either public or private. Aroad or a street whose user is limitedto the inhabitants of a particular villageor people who visit them on business orotherwise is not a public road. A publichighway is dedicated not to a limitedsection of the public but for all subjects,that is to say, the public at large. A roadrunning through a village is in one sensea village road but it may neverthelessbe a highway if it has been dedicated tothe public at large as in the case of trunkroads.'

Therefore, relying on the observations inthe above judgments and the section itself, I think that Section 91 C.P.C. is notattracted in the present case. It is not apublic road Neither there is evidence toshow that this was dedicated to the public. Therefore, the objection of the learned counsel cannot be accepted.

6. Now coming to the evidence, I will see whether the finding of the trial Court, confirmed by the appellate Court is correct or not. The first witness is Mulua, the plaintiff himself. He has stated regarding the partition and the opening of the door and he has also said that in front of the door, there is a village pathway. He has also said in his statement that he uses this door for coming and going for his family members and himself and also for the cattle. The evidence is supported by Mishrilal (P.W. 2), Gangaram (P.W. 3) and others. Even witnesses of defendants support the claim of the plaintiff. I will refer to the statement of Gorelal (D.W. 1) in which he has said that in front of the house of Mulua and Puran, there are houses of Bhujbal and Balwanta. On one side, there are houses of Balwanta and Bhujbal and on the other side, there are the houses of Nathua and Puran and in between these houses, there is a village path. The village path runs from south to north. It takes a turn where the house of Man-singh is situated and further it goes to the houses of Gopi and others. The doors of the houses of Puran, Bhujbal and Mansingh open on the said way. Similarly, the doors of the houses of Gopi and Samrat also open on this way. Similar is the statement of witness Biharilal who is D.W. 3.

7. But the clinching evidence is that of the Commissioner appointed by the Court Shri Kailash Babu, Advocate. He has inspected the spot and filed the sketch he has prepared, which is Ex. C/2. He was examined as a Court witness. That sketch clearly proves the case of the plaintiff. The objection taken by the learned counsel before me for the appellants was that in the sketch, it is not written as to what is the length of the alleged village pathway. But the sketch map of the spot was prepared in the presence of the parties and it is signed by both of them. They have not raised any objection when the spot was inspected. Neither they have raised any objection in the Court and from the evidence, as I have already referred above, there seems no doubt to me that the door of the plaintiff opens towards the pathway and he can reach the pathway from his house by the door in dispute. Therefore, looking to the evidence I feel that thefinding of the trial Court, which is confirmed by the appellate Court is correct. The objections raised by the learned counsel regarding maintainability of the suit also I have rejected.

8. The result, is that the appeal is dismissed with costs. Counsel's fee Rs. 100 if certified.


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