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Pabia and ors. Vs. Badia and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 107 of 1952
Judge
Reported inAIR1957Raj175
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101; Specific Relief Act, 1877 - Sections 54
AppellantPabia and ors.
RespondentBadia and ors.
Appellant Advocate Jaigopal Chhangani, Adv.
Respondent Advocate Hastimal, Adv.
DispositionAppeal dismissed
Cases ReferredIn Agha Mohd. v. Wahiddino
Excerpt:
.....his own property. i have, therefore, arrived at the conclusion that the case of the building of a door or doors by a person in his own house so as to open on to and to be used for purposes of passage through, his neighbour's land stands on a different footing from these cases where merely windows or similar other apertures are opened because in the former case the enjoyment sought to be made by the party concerned of his own property according to his own desire is calculated to interfere with or infringe a clear and well established right of the neighbour to enjoy his own land without undue interference by others. the plaintiffs in such circumstances are clearly entitled to an injunction closing the doors and a mere injunction preventing the defendants from walking over the plaintiffs'..........of this character.i have, therefore, arrived at the conclusion that the case of the building of a door or doors by a person in his own house so as to open on to and to be used for purposes of passage through, his neighbour's land stands on a different footing from these cases where merely windows or similar other apertures are opened because in the former case the enjoyment sought to be made by the party concerned of his own property according to his own desire is calculated to interfere with or infringe a clear and well established right of the neighbour to enjoy his own land without undue interference by others.now applying the above principles of the facts and circumstances of the present case, i find that the contesting defendants have firmly maintained right up to this court that.....
Judgment:

1. This is a second appeal by the defendants in a suit for injunction.

2. The plaintiffs Badia, Pakhia, Nawala and Tala claimed that they were Bapidars of Khasra No. 169 situate in village Deoli, Tehsil Desuri, and that they were in possession of the said land. Their case was that the defendants, (except the jagirdar of Deoli) who owned houses on the north-western and south-western side of their land had built a number of doors opening on to the plaintiffs' land and also carved out a new way through the said land and, therefore, they prayed for an injunction restraining the defendants from using the plaintiffs' land for purposes of passage and also an injunction enjoining them to close the doors in question.

Out of the defendants, Samratha, Poma, Natha. Nawala, Bala, Hirka, Mania, Pannia, Moti, Nawla and Hakia admitted the plaintiffs' claim and stated that they had opened the doors in question and the way at the instance of the jagirdar and that these did not exist ever before. The other defendants who are appellants in this Court resisted the plaintiffs' suit on numerous grounds. Their principal contention was that the Way and the doors were old. Both lower Courts decreed the plaintiffs' suit and granted them the injunction prayed for. The defendants' appellants have now come up in second appeal.

3. I may state at once that it is not open to the appellants to question certain findings of fact, which have been concurrently arrived at by the Courts below. One such finding is that the doors and the way in question have not been established to be old and were a recent creation. Another such finding is that the plaintiffs were the bapidars of Khasra No. 169 and were in possession thereof.

Both lower Courts have found against the defendants on these points and their findings are binding on the Court in second appeal. Learned counsel for the defendants appellants strenuously argued, however, that the Courts below had fallen into error in granting the injunction to the plaintiffs in respect of the doors and the right of way because they had failed to arrive at a distinct and definite finding to the effect that the area of Khasra No, 169 extended right up to and touched the houses of the contesting defendants. Having given my careful consideration to this argument, I have come to the conclusion that it is without any substance. It appears to me that this point was not at all a subject of controversy in the Courts below.

In fact, a perusal of the written statement filed by the contesting defendants, fairly read, leads one to conclude that their case in the trial Court was not that there was any intervening strip of land between the land of the plaintiffs and the houses of the contesting defendants, but that their case really was that the plaintiffs were not the owners of Khasra No. 169, and secondly that the doors and the way had not been made anew but were old. I am, therefore, of opinion that the defendants appellants cannot be allowed in this second appeal to make out a new case for the first time and I overrule this contention.

4. Proceeding on the basis, therefore, that the doors and the way in question have not been in existence for the prescriptive period and are new, the next question which has been raised before me and calls for determination is whether the defendants appellants can be prevented from opening doors in the walls of their own houses. The contention of learned counsel on their behalf is that they have opened the doors in their own houses and that they are perfectly entitled in law to do so; and, therefore, it is not open to the plaintiffs to object to their being opened and that if they feel aggrieved on that account, it is open to them to erect the requisite structures such as a wall etc on their own land with a view to close them up.

Learned counsel has cited a number of authorities in support of his proposition. These are Kashinath v. Bam Jiwan, AIR 1933 Lah 847 (A), a case of the Lahore High Court, pitchai Rowther v. Devaji Rao, AIR 1937 Mad 21 (B), a case Of the Madras High Court; Ganesh Prasad v. Bas-deo, ILR 16 Luck 686: (AIR 1941 Oudh 442) (C), a Case of the Oudh Chief Court; Agha Mohd v. Elias Haji Wahiddino, AIR 1948 Sind 36 (D), a case of the Sind Chief Court and Meghu Mian v. Kishun Ram, AIR 1954 Pat 477 (E), a case of the Patna High Court. I have carefully examined these rulings and must confess that it is not possible to reconcile all of them. Thus in AIR 1933 Lah 847 (A), the defendant had opened a door and windows in his wall facing the plaintiff's site. The plaintiff was refused permission to construct a wall in front of the apertures by the Municipal Committee. Thereupon the plaintiff filed a suit for injunction for closing the door and windows.

A learned single Judge came to the conclusion that the plaintiff had a genuine grievance; but proceeded to say that having regard to the situation of the site and the other circumstances (which do not appear to have been mentioned in the judgment), he was of opinion that injunction was not the proper relief and that the threatened Injury to the plaintiff could be redressed by grant of pecuniary compensation. The facts of the Madras case are quite different and it does not appear to me that the doors sought to be built in that case opened on to the land of the plaintiff. In the Lucknow case it was held that where the defendants built doors in their own wall but opening on to the plaintiff's land, they could not be legally ordered to close them as they were entitled to do so in the exercise of their 'own right of possession and enjoyment of their property.

It seems, however, that the learned Judge who decided this case was of the opinion that this rule would not apply where the defendants were prevented from doing so by any rule of law or by any right acquired by the plaintiff authorising him to have the said doors closed. It may also be mentioned that the argument on the side of the plaintiffs in this case was that if the doors were allowed to stand, the defendant might acquire a right of easement to light and air after the lapse of 20 years. This contention was repelled, and in my opinion rightly; but no controversy appears to have centred in that case unlike the present case, on the question of the door in dispute being used for purposes of passage The Lucknow case, therefore, is not of any help to us.

In Agha Mohd. v. Wahiddino (D), the dispute related to the opening of a window and it was held the mere opening of a window by a man in his own wall cannot constitute an invasion of or a threat to invade the rights to or enjoyment of his neighbour's property except in those rare cases where a custom as to right of privacy is provable. The Patna case (E) dealt with the question of the opening of a door and an injunction had been granted directing the defendants to close it. An appeal was taken to the High Court, and the learned Judges of a Division Bench who decided the case found that the intention of the defendant in opening the door was to have a passage through it to the land of the plaintiffs and yet came to the conclusion that in their opinion the rights of the plaintiffs would be fully protected if, in place of maintianing the order that the door should be closed, they passed a mandatory injunction against the defendant for not going over the land owned by the plaintiffs.

It was observed that under Section 54 of the Specific Relief Act, it would be perfectly legal to issue a mandatory injunction even when there was a threat of invasion over the right of the plaintiff. But it appears that the learned Judges were not prepared to uphold the mandatory injunction issued by the Courts below directing the defendants to close the door but instead they pass-ed a injunction restraining the defendant from going over the plaintiffs' land.

Having given my very careful consideration to the law laid down by the authorities cited above, I have come to certain conclusions which I propose to summarise now. The principle is very well established that it is open to a person to use his own land as he likes. This principle must, however, be held subject to one exception and that exception is that in doing so he must not invade equally well established rights of the other party holding land in the neighbourhood of the first party.

The course of decisions seems to me, therefore, to have been uniform in the case of apertures such as windows which may have been opened by a party and which are objected to by a neighbour and it has been always held that the objecting party cannot be allowed to prevent the opening of such apertures by the owner of the property in his own wall. The question then is whether the same principle should be held to apply to a case in which a person instead of opening a window builds a door opening on to his neighbour's land and he deliberately does so with a view to use such a door for purposes of egress and ingress in respect of his house.

There is no doubt, in my mind, that such cases fall within the four corners of Section 54 of the Specific Relief Act which lays down conditions where a perpetual injunction is to be granted. Among others, these conditions are that such an injunction may be granted where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, and where the invasion is such that pecuniary compensation would not afford adequate relief or where the injunction is necessary to prevent a multiplicity of judicial proceedings.

It clearly appears to me that leaving exceptional cases out of account which may have to be decided on their own facts and circumstances, it is easy to conceive that where a defendant builds a door just adjacent to and opening on the plaintiff's land, he certainly invades, or if he does not actually invade, he threatens to invade the plaintiff's right to or enjoyment of his own property. It is a matter of ordinary experience that it is not necessary to open a door for purposes of light and air because a window would be enough to achieve that end, and wherever a door is opened, it is, more often than not, opened with a view to walk on to the other party's land through It.

In that state of circumstances, it is impossible to say that the defendant in building on his own land is building in such a way that he does not interfere or threatens to interfere with the lawful rights of his neighbour, It also appears to me that it cannot be postulated of such cases that the invasion therein may be met by the award of a pecuniary compensation only. With great respect, I am further disposed to think that in such cases the granting of a mere injunction restraining the defendant from walking on to the plaintiff's land would be more or less futile and can only lead to interminable litigation and is, therefore, a very inadequate remedy in cases of this character.

I have, therefore, arrived at the conclusion that the case of the building of a door or doors by a person in his own house so as to open on to and to be used for purposes of passage through, his neighbour's land stands on a different footing from these cases where merely windows or similar other apertures are opened because in the former case the enjoyment sought to be made by the party concerned of his own property according to his own desire is calculated to interfere with or infringe a clear and well established right of the neighbour to enjoy his own land without undue interference by others.

Now applying the above principles of the facts and circumstances of the present case, I find that the contesting defendants have firmly maintained right up to this Court that they are entitled to use the doors built by them for the purposes of passing through the land in dispute which has been held to belong to the plaintiffs, and that their case has never been and cannot be that the injury, if any, to the plaintiffs could be compensated for by the award of any pecuniary compensation.

The plaintiffs in such circumstances are clearly entitled to an injunction closing the doors and a mere injunction preventing the defendants from walking over the plaintiffs' land would be meaningless. I hold, therefore, that the Courts below were perfectly right in granting the injunction directing the defendants appellants to close the doors in question.

5. So far as the right of way is concerned. I need only say that as it has been held by both Courts below that it has been newly made on the land of the plaintiffs by the defendants, the injunction granted by the lower Courts in respect thereof is correct.

6. Another contention raised on behalf of the defendant appellant No. 1 Madhosingh, who having died during the pendency of the appeal is now represented by Sajjansingh, is that the Courts below should not have saddled him with the plaintiffs' costs inasmuch as he does not own any property in the neighbourhood of the plaintiffs' land and is not otherwise concerned With the dispute between the plaintiffs and the other defendants in the case. This argument is bereft of all force. It clearly appears from the history of this litigation that the jagirdar Madhosingh was as much anxious to fight the case against the plaintiffs on all points as the other defendants who owned houses in the neighbourhood of the plaintiff's land.

The present appeal has been jointly filed by the jagirdar along with the other contesting defendants in the case and it is impossible to resist the conclusion that he completely identified himself with 'the case of the contesting defendants. I, therefore, see no reason to interfere with the order of the Courts below in this respect.

7. The result is that this appeal fails and is hereby dismissed with one set of costs to the contesting respondents.


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