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Kanhai Lal vs Bhorey Lal And Ors.

High Court Of Judicature at Allahabad|24 April, 1939


1. This is an appeal by the defendant Kanhai Lal. Reference may be made to a map which is a part of the decree of the lower Appellate Court. The plaintiffs are the owners of a certain house indicated in the map and to the west of the plaintiffs house is a rasta to the north of the plaintiffs' house is the house of Bhorey Lal, defendant 2, to the west of the rasta are the shops of Hasan Lohar and Asharaf Lohar and to the west of these two shops-are two chabutras belonging to these two shops. To the north of these two shops was a certain shop and chabutra marked X which defendant 1 purchased. To the further north of this plot marked X are the houses of defendant 1. The plaintiffs' case was that a portion of the rasta to the west of the plaintiffs' house had been usurped-by the defendant and a chabutra had been built thereon. This portion is towards the north-west and by this construction of the chabutra the defendant has made his house compact and the way has been blocked to wards the north and towards the west. The plaintiffs therefore brought a suit for the removal of the obstruction and they impleaded defendant 1, the main contesting, defendant, and defendant 2, Bhorey Lal, as defendants to the suit. There was also a claim by the plaintiffs about a certain drain belonging to defendant 1 and it was said that this drain went formerly towards the west but now the defendant had opened this outlet towards the south and the defendant's drain therefore ought to be diverted. Courts below have decreed the plaintiffs' suit so far as the obstruction on the way is concerned, but they have dismissed the suit; so far as the drain is concerned. The defendant has come in second appeal to this Court and the plaintiffs have filed cross-objections regarding the drain. I might dispose of the cross-objections at once and say that there is no force in them. The lower Appellate Court observes on this point as follows:
I therefore see no point in the plaintiffs' case in opposing the flow of the drain of defendant 1 which has been proved according to the local inspection made by the learned Munsif to be flowing in the old channel.
2. The learned Munsif inspected the locality and he came to the conclusion that there was a distinct slope towards the south and the water from the defendant's drain had been flowing towards this side even when the chabutra had not been constructed. Coming to the appeal of defendant 1 the contention is that the houses of none of the parties open on this rasta. The map shows that and there is also the finding of the lower Appellate Court when discussing point No. 2 to the effect "that in the rasta land in dispute nobody's door opens." The plaintiffs' house has still got the open rasta to the west. It is only on the western side in the house of defendant 2 that the rasta has been blocked by the constructions of defendant I. It is said on behalf of the appellant that the plaintiffs neither alleged nor proved any special damage whereas it iii a well known rule that a private action cannot be maintained in respect of a public nuisance save by a person who suffers particular damage beyond what is suffered by him in common with all other persons affected by the nuisance : see Bhawan Singh v. Narottam Singh (1909) 31 All. 444. The answer is that this is not a public way, but a way such as is common in villages. I feel Inclined to agree with the answer given by the plaintiffs-respondents that this is not a public highway, but at the name time the plaintiffs must prove an encroachment of a private right and that would be considered to be a particular damage. In Hanuman Prasad v. Raghunath Prasad (1924) 11 A.I.R. All. 715 their Lordships observed at page 574 as follows:
It has boon contended by Dr. Katju that this lotion is not competent to be brought by the plaintiffs because they have not suffered particular damage over and above that which other people have suffered; but that is not quite a complete statement of the law because, although the plaintiffs must show a particular damage, it is clear that the infringement of a private right of this kind has boon recognized as being particular damage in the case of individual members who enjoyed access to the highway from adjoining property, and if authority were needed for that passage it is to be found in Lyon v. Wardens of Fishmongers' Co. (1876) 1 A.C. 662.
3. Some sort of a particular damage there. lore has got to be shown by the plaintiffs themselves even in the present case. The case in Sahadeo Singh v. Ram Nawal Singh (1929) 16 A.I.R. All. 68 has no bearing whatsoever. In that case the plaintiffs were some of the persons who suffered some damage and some of the cosharers of the village whose proprietary rights were interfered with. A road or rasta like this is well known so far as villages in India are concerned, and if authority were needed I might refer to the case in Prannath Kundu v. Emperor (1930) 17 A.I.R. Cal. 286. But after this has been said, it is clear that some sort of private damage needs must be established by the plaintiffs as was established in Hanuman Prasad v. Raghunath Prasad (1924) 11 A.I.R. All. 715. As I said before, the plaintiffs did not allege, much less prove, any special damage, and looking at the map I cannot think of any particular damage to the plaintiffs. Their four parnalas are in. tact and water from them can flow into the rasta. If they want to have any repairs on their western wall, they can have those repairs now without any obstruction by the defendant. The only thing that can be sug-gested is that they could come by this way up to the line BC and then turn towards the left and then join the public highway which is marked as 116. Coming from their house from the doorway, which is on the eastern side, the plaintiffs come towards the south and then if they take this particular rasta they will have to go up to BC and then turn towards J and get into the public way. As matters at present stand, the plaintiffs come out of their main entrance, reach the place 6 and then, instead of going through the rasta cross the line A which is not one inch longer than the line BJ and then get into the public highway at 116. The way which is still open to them is not in the least inconvenient, nor is there the slightest detour, nor can it be said that they have to traverse a longer distance even by half a yard. The doors, neither of the plain, tiffs' house nor of Ashraf's and Hasan's, open on this rasta, and it cannot be said that the plaintiffs cannot go to the houses of these neighbours or of defendant 2 ; nor have the plaintiffs been in any other way damnified by the constructions made by the defendant.
4. The plaintiffs are not the zamindars of the village and their proprietary right has not in any way been affected. The question which I have to decide is whether any rights of easement which they had acquired has been affected, and as far as I can see from the map no such right has been inter, fered with nor have the plaintiffs suffered any damages. I hold the view therefore that the plaintiffs have not got the right to maintain the suit. I therefore allow this appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts. Leave to file an appeal by way of Letters Patent is allowed.
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Kanhai Lal vs Bhorey Lal And Ors.


High Court Of Judicature at Allahabad

24 April, 1939