C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for injunction.
2 The houses of the parties are situated in a blind alley in the town of Baran. The width of the lane where it meets the main road is said to be 10'-8'. As one proceeds inside the lane for after about 13' the width of the lane is reduced on account of there being a 'Chabutri' in front of the defendant's house. The plaintiff's house is situated almost at the end of the lane. The plaintiff's case is that he had purchased this house from the defendant's maternal grand-father Gendilal in 1950 A D. and reconstructed ' it in 1951. It is alleged that the lane is being used for carrying a bullock cart to the plaintiff's house for the last more than 30 years. But the defendant some time in the month of Posh Samvat 2014, placed two stone-pillars one adjacent to the corner the 'Chabutri' of his house and the other just opposite to it with the result that the widh of the lane at that point was reduced to 5'. The two stones which are alleged to have been placed by the defendant have been marked as points Nos. 1 and 2 in the site plan Ex. 1 attached to the plaint, The plaintiff also alleged that he constructed a door in his house opening towards the northern of his house but the defendant unlawfully raised a wall in front of the door and there by blocked the passage. The plaintiff, therefore, instituted the present suit on 14-3-1958 praying that the dependant, be directed to remove the stones from the lane so as to restore its former width of 6 and a perpetual injunction be also issued against him not to make any encroachment in the lane in future It was also prayed that the wall constructed by him in front of the plaintiff's door be ordered to be removed, and the plaintiff may be awarded Rs. 250/- as damages. The defendant denied the plaintiff's suit and pleaded that no bullock cart has ever been taken through the lane to the plaintiff's house as the lane is too narrow for taking a bullock cart through it. It was also pleaded that the plaintiff had unlawfully opened a door on the defendant's land and that he had right to raise a wall on his own land to which the plaintiff can have possibly no objection.
3. Both the parties examined a number of witnesses and also produced several documents in support of their respective cases, and the learned Munsiff by his judgment and decree dated 30-3-1962 held that the plaintiff had failed to establish that bullock carts were being taken inside the lane for the last 30 years as pleaded by him. He also came to the conclusion that the defendant had not reduced the width of the lane from 6' to 5' as alleged by the plaintiff. As regards the obstruction of the plaintiff's door by the defendant by raising a wall just in front of it, the learned Munsiff held that the plaintiff had failed to substantiate the case set up by him. In the result he dismissed the plaintiff's suit.
4. The plaintiff filed appeal but that too was dismissed by the learned Civil Judge, Baran by his judgmant dated 22-1-63. Consequently the plaintiff has come in second appeal to this Court.
5. In the course of arguments learned counsel for the appellant expressly gave up his case for demolition of the wall alleged to have been built by the defendant blocking the plaintiff's door and also for damages on on account of the same. The only point which has been argued by him is that the plaintiff is entitled to get a decree for removal of the stones from the places marked '1' and '2' in the plan Ex. 1. He has also urged that a perpetual injunction may be issued against the defendant restraining him from making any further encroachment in the lane or by doing any other act which may result in the reduction of the width of the lane to less than 6'.
6. It may be observed that the learned first appellate court has come to the conclusion that on 11-2-1957 the width of the lane in question was 6 and that it was sometime between 11-2-1957 and 27-8-57 that the width of the lane was reduced from 6' to 5' by fixing two stones shown as points Nos. 1 and 2 in the plan Ex. 1. Learned counsel for the respondent has, however, challenged this finding and has urged that the finding of the first appellate court in this respect has been based on the plan Ex. 5 only, and on no other evidence. It is submitted that the plaintiff was at no time confronted with Ex. 5, and, therefore, it should not have been used as evidence against him. It appears that the defendant applied for constructing his house to the Municipal Board, Baran on 11-2-1957 and submitted a plan along with his application. Ex. 5 is the certified copy of that plan and Ex. 7 is the certified copy of the order dated 15-2-57 by which the Municipal Board, Baran permitted defendant to raise the construction for which permission had. been sought by him. In the plan Ex. 5 which purports to be signed by the defendant the width of the lane at the southern end of the 'Chabutri' has been shown as 6'. P. W. 12 Vidhyasagar has stated that he has been in the service of the Municipal Board, Baran since 1945 and was an Executive. Officer since 1952. He further deposed that he had inspected the site in respect of the plan Ex. 5 submitted before the Municipal Board, Baran, and that Ex. 7 in the certified copy of the order passed by the Municipal Board, Baran. The objection raised on behalf of the respondent is that the admission contained in the plan Ex. 5 that the width of the lane on 11-2-1957 was 6' cannot be used against the defendent as the defendant was not confronted with the same. This objection in my opinion has no force. It is well settled that if a party is proved to have made an admission, it is his duty to explain and it is not for the other party to call upon him to explain the same the doctorine of confrontation in such a case would have no application. In this view of the matter the learned first appellate Court cannot be said to have committed any error in using the plan Ex.5 against the defendant for coming to the conclusion that on the date when the plan was submitted by the defendant before the Municipal Board, Baran, that it, on 11-2-1.957 the width of the lane at the southern end of the defendant's 'Chabutri' in the lane was 6'. It is further clear that on that date there did not exist the two stones which were admittedly there on the date of the suit. That the width of this lane at that place was 5' on the date of the suit is not disputed by the defendant. Learned counsel for the respondent, however, raised an ingenious argument and it is this that at the time 'of writing the measurement as 6, in the plan Ex. 5 its maker may have included the two stones fix d up at the two ends 6 and this distance does not necessarily indicate the width for the purpose It may, however, be observed that no stones have been shown in Ex. at the relevant place, and no such explanation as has been put forward before me now by the learned counsel for the respondent was at any stage given by the defendant. In this view of the matter the finding of the first appellate court that the width of the lane at the relevant place was reduced from 6' to 5' by placing the two stones in the lane after 11-2-195 7 does not appear to be erroneous. Even apart from that the evidence of P. W. 9 Kishanlal, P. W. 13 Kanhaiyalal, and P W. 14 Azimullah have also stated that the defendant reduced the width of the lane. P.W. 9 Kishanlal has also stated that the defendant has placed steps in the lane for going to his house. Thus the evidence of these witnesses also lends support to the plaintiff's version that the defendant has reduced the width of the lane at the relevant place, by fixing two stones. In these circumstances, I have come to the conclusion that the finding of the lower appellate court that the width of the lane at the relevant place has been reduced from 6' to 5' by placing two two stones on both the sides of the lane must be accepted as correct.
7. After discussing the evidence produced by both the parties the learned Civil Judge has also come to the conclusion that the plaintiff has failed to establish that a bullock cart was being taking through this lane to his house for a period of more than 30 years next before the filing of the suit. This is a pure finding of fact and the learned counsel for the appellant, I must say, failed to show tow this finding of the first appellate court is vitiated. Learned counsel, however, submitted that the mere fact that bullock carts have not been taken through the lane in question in the past cannot give rise to an inference that the plaintiff cannot, now take his bullock cart through this lane to his house. The learned Civil Judge has found that a bullock cart cannot be taken through a lane unless the width of the lane is 7 to 8 feet. The criticism advanced by the learned counsel for the appellant against this finding is that all the bullock carts are not of the same size, and the defendant cannot prevent the plaintiff from taking a vehicle including a bullock cart which can pass through the lane without causing and injury or damage to the defendant and his house. He has submitted that the defendant had never set up a case that the lane in question was his private property, and, therefore, it is immaterial whether the plaintiff has been able to establish a contineous and uninterrupted use of the lane in question for carrying a bullock cart through the lane in question for more than 20 years. To put it more precisely the stand taken by the learned counsel for the appellant is that the allegation in the plaint that bullock carts have been taken through the lane in question to the plaintiff's house for the last more than 30 years, openly and without interruption was wholly unnecessary and superfluous.
8. On the other hand, learned counsel for the respondent has contended equally vehemently that the plaintiff has not alleged in the plaint that the lane in question was a public high way, but set up a case of prescriptive easement for the use of way in question for the purpose of taking bullock cart to his house. In the alternative he has argued that a high way need not be a cart way nor need it be a carriage thorough-fare and there may be certain restrictions imposed upon the enjoyment of the right of passage.
9. Before embarking upon the consideration of the rival contentions of the parties I must say that neither the plaintiff nor the defendant put forward their respective cases in their pleadings properly. It is true that the defendant has no where said that the land in question was his private property. On the other hand from the documents produced on the record it does appear that the lane in question was no-body's private property The defendant himself has sought permission from the Municipal Board, Baran for putting up a gate at the mouth of the lane in question, but the Board refused such a permission, vide its order dated 11. 1. 1956 marked Ex. A. 1. It further appears that the defendant also sought premission for constructing a house in the lane. This shows that if the lane were exclusively his own no such premission would have been necessary. My attention has also been invited to a notice Ex. 11, dated 4.2.1954 issued by the Municipal Board, Baran to the plaintiff to show cause why action should not be taken against him for breaking a part of the Gutter, in the lane. These documents coupled with complete absence on the part of the defendant to assert his claim of ownership to the lane in question at any time prior to the suit or in the course of the trial of the suit lead me to the only conclusion that the lane in question is not the private property of the defendant. The word 'Rasta' has been used in the plaint and in the plan Ex. 5 produced by the defendent before the Municipal Board, Baran, the lane in question has been described as 'Aam Rasta'.
10. The question then arises what is the nature of this lane? In Ramabrahma Sastri v. Lakshminarasimham AIR 1947 A. P. 44 Viswanatha Sastry J., observed as follows:
A road is either public or private. A road or a street whose user is limited to the inhabitants of a particular village or people who visit them on businees or otherwise is not a public road. A public high way is dedicated not to a limited section of the public but for all subjects, that is to say, the public at large. A road running through a village is in one sense a village road but it may never the less be a high way if it has been dedicated to the public at large as in the case of trunk roads.
11. Again in Sri Ram singh v. Patti : AIR1968All18 it was observed that there is a distinction between a public way and a village path way. In the latter class of cases the requirements of the plaintiff proving special damage has never been insisted upon. It is well settled that a. village path way is not a public high way, and that no special damage need be proved in a suit for removal of an obstruction to the former.
12. In the present case lane as already stated is a blind lane on which abut a few houses, not more than 4 or 5, the plaintiff's house being the last one. The obstruction by placing of the stones on the lane in front of the plaintiff's house' undoubtedly interferes with the free passage through the lane into the plaintiff's house. I am also of the opinion that the lane is not a public high way but serves as a passage only for the residents of the few houses opening into the lane. The public in general do not use the lane as a pathway, but only the residents of a small locality of whom the plaintiff is the one use it. The narrowing of the passage, in my opinion, thus caused special damage to the plaintiff whose house is almost at the end of the lane beyond the defendant's house. In this view of the matter I hold that the plaintiff is entitled to get the obstruction removed so that the width of the lane may be restored to 6' at the relevant place as it was before fixing the stones.
13. Learned counsel for the respondent streneously contended that the plaintiff wants to take double-bullock cart through the lane into his house and while doing so he is bound to damage the defendant's 'Chabutri' and is also likely to cause 'injury to the defendant's children, who usually play in the lane. It is thus argued by the learned counsel for the respondent that the plaintiff cannot be held entitled to take a bullock cart through this lane more specially when he has failed to establish that in the past the bullock carts had been taken through the lane.
14. As I have already stated above the plaintiff has undoubtedly failed to establish that bullock carts are being taken through the lane in question to the plaintiff's house for the last more than 30 years. The question whether the lane in dispute can be used only as a foot-pach and for no other purpose was not agitated by the defendant at any state, non any provision of law has been pointed out to me that such a way can only be used as a foot-path and for no other purpose. At the some time it is also correct that the plaintiff cannot be allowed to take through the lane any vehicle which cannot conveniently pass through the lane on account of the narrow Width of the lane lest he is bound to cause damage to the defendant's 'Chabutri' which he cannot by any stretch of imagination be allowad to do. It is not possible for me to lay down any hard and fast rules as to what vehicle or articles can the plaintiff take through the lane in question to his house.? But broadly speaking all that I can say is that he can use the lane only in such a manner as not to cause any serious inconvenience to the the residents of the locality and also not to damage the defendant's 'Chabutri' at the relevant place. In any case so far as the present suit is concerned the only relief claimed by the plaintiff in the plaint in this connection is that the two stones may be removed and the defendant may be directed to restore the former width of the lane at the relevant place, that is, 6' and in view of the findinge arrived at by me I do not see any objection to the grant of this relief. As regards the made of user of the lane it is hoped that the parties will behave like good neighbours and use the lane in such a Way as not to cause any inconvenience to each other lest it may give rise to further litigation.
15. Accordingly I partially allow this appeal, set aside the judgments and decrees of the courts below, decree the plaintiff's suit to this extent that a mandatory injunction be issued against the defendant for removal of the two stones at the places marked '1' and '2' in the plan Ex.1, so as to restore the width of the lane at that place 6'. A perpetual injunction is further issued against the defendant restraining him from placing any obstruction in the lane in question. In the circumstances of the case I leave the perties to bear their own costs.