ABDULLAH Versus AHMAD KHAN

Abdullah and another, the petitioners, filed this civil revision under section 115, C.P.C. to assail the judgment and decree, dated 30‑10‑1974 of Mr. Muhammad Hussain Kazi, Additional District Judge, Mianwali, whereby the appeal of the respondents was accepted, the judgment and decree of the trial Court was set aside and consequently the suit of the petitioners‑plaintiffs was dismissed.

2. The facts necessary for appreciating the respective submissions of the parties are that the petitioners‑plaintiffs filed a suit for declaration and mandatory permanent injunction on the following terms: ‑‑

(i) to direct respondents‑defendants No.l and 2 to remove Kothasfrom Khasra No.1133 and clear the path in question;

(ii) to restrain respondents‑defendants No.3 to 10 to cultivate the land in dispute forming part of Khasra Nos. 1249, 2000, 1894/1296;

(iii) to direct respondent‑defendant No.ll to fill in the pits in Khasra No.1133 so that the entire path on the points noted in the plan could be used fully; and

(iv) to restrain respondents‑defendants permanently from obstructing the petitioners‑plaintiffs from using the path situate in aforenoted Khasra numbers.

It was averred that the pathway was being used as a thoroughfare from the time of their forefathers and as such the residents of the village acquired right of easement and consequently, the respondents /defendants have no right to encroach upon the very thoroughfare by constructing Kothas over a part of it or including any part of the pathway in their agricultural land or to render the thoroughfare not usable by the villagers by digging pits in Khasra No.1133.

3. The suit was resisted by the respondents‑defendants by raising preliminary objections and asserting that the houses existed at the site since the time of their forefathers. They also denied the existence of the pathway as alleged. The learned trial Court after framing issues arising out of the pleadings of the parties and after recording the evidence produced by the parties, decreed the suit vide judgment and decree dated 3‑4‑1974. The decree of the trial Court was, however, set aside on appeal filed by the respondents‑defendants vide judgment and decree, dated 30‑10‑1974 of the learned Additional District Judge, Mianwali. The learned appellate Court dismissed the suit returning the finding that the learned trial Court materially erred in entertaining the suit and passing the decree in favour of the petitioners‑plaintiffs A as the suit was hit by the provisions of section 91, C.P.C. and that the petitioners‑plaintiffs could not bring an action on their own without the prior sanction of the Advocate‑General.

4. I have heard the learned counsel for the parties. In support of the revision petition, learned counsel for the petitioners submitted that the learned appellate Court erred in law in recording the conclusion that the suit filed by the petitioners‑plaintiffs was hit by the provisions of section 91, C.P.C. and that the two precedents Abdullah v. Muhammad Amin P L D 1968 Lah. 1235 and Ghulam Muhammad v. Murad Bakhsh P L D 1969 Lah. 95 were wrongly held applicable to the instant case. It was added that the learned appellate Court by failing to notice the judgments relied upon by the learned trial Court held that provisions of section 91, C.P.C. applied fully to the instant case and that by placing reliance on the aforenoted two cases which were not applicable erred in law in reversing the judgment and decree of the learned trial Court. Learned counsel for the respondents /defendants in reply supported the impugned judgment with the submissions that the petitioners had no locus standi to institute the suit as they had not obtained permission of the Advocate‑General as required by section 91, C.P.C. and that in any case, the petitioners/ plaintiffs failed to establish that they had acquired any right of easement respecting the pathway in dispute.

5. I have given serious consideration to the respective submissions of the parties and have also gone through the record. The plea urged before the first appellate Court was that the petitioners‑plaintiffs had no locus standi to file the suit as they had sought mandatory permanent injunction against the respondents‑defendants for removal of obstructions allegedly raised on the pathway claimed to be a public way. In order to determine the applicability of the provisions of section 91, C.P.C. and the precedents thereunder, the first thing to be seen is the precise nature of the public way in question. Learned trial Court under issue No.5, discussed the evidence on record produced by the parties and relying on the documentary evidence comprising of Aks Shajra, EXh.P.1, Rapat Roznamcha Exh.P.2, Jamabandi for the year 1967‑68, Exh.P.3, Rapat Roznamcha Exh.P.4 and Exh.P.5, and Khasra Girdawari, Exhs.P.6 and P.7 recorded the conclusion that a village pathway of 4 Karams width existed and that this pathway was encroached upon or obstructed by the respondents/ defendants at the points noted in the plan produced in evidence. Thus instant case was of a village pathway and not of a public highway or of a road, street, lane or drain within the municipal limits. This distinction, the learned appellate Court failed to comprehend with the result that this misconception led to the setting aside of the judgment and decree passed by the learned trial Court by relying upon precedents which were not applicable. In the case of Abdullah v. Muhammad Amin P L D 1968 Lah. 1235, the parties were neighbours living at the terminus of a blind alley in Maghiana town. The house of the plaintiff opened in the blind alley whereas the house of the defendants opened in the main street towards the west. A drain for the outlet of water passing through the middle of the alley starting in front of the house of the plaintiff existed. The defendant opened a new door in the alley with a view to provide them access to and from this blind alley. They also proposed to extend the existing pucca drain from its terminus point to the wall of their house so as to enable them to use the drain for the outlet of their water. This led to the filing of the suit claiming relief that defendant be restrained from constructing the proposed drain and that a mandatory injunction be issued to them to close the new door opened in the lane on the assertions that the new door and the proposed construction of the new drain were being done without the sanction of the Municipal Committee and it amounted to an interference with the peaceful enjoyment of the use of the drain to the exclusion of the defendant which was going to result in a nuisance by stagnation of water. In the circumstances, it was held that the act done or proposed to be done without statutory permission of respective authority does not itself give locus standi to private person to bring suit for injunction against such act, being public nuisance in which person concerned has not suffered special damage. In the other Lahore case: Ghulam Muhammad v. Murad Bakhsh P L D 1969 Lah. 95 learned Judge after noticing that there are three classes of rights of way as mentioned in Chuni Lal v. Ram Kishan Sahu (1888) 15 Cal. 460, observed that in the case before him it was not clear from the plaint as to what kind of right of way was being claimed. The case was, however, decided by returning the finding of fact as under:‑‑

"I find that the appellants have failed to prove that the right of way claimed by them had its origin in custom, which is a condition precedent for establishment of such a right. From the evidence on record, it cannot be urged with success that there has been an open and uninterrupted enjoyment of the property for a long period, unexplained so as to attract the maxim omnia presummuntur rite esse acta. In the circumstances, no presumption can be raised that the right claimed by the appellants had a legal origin and the people of the locality, or at least the appellants, had a right to use this passage."

The learned Judge, however, in this very case noted the following judgments in which it was held that section 91, C.P.C. was no bar to the suit for injunction respecting the village pathway:‑‑

(i) Mst. Ram Kali and another v. Munna Lal and others A I R 1939 All. 586;

(ii) Harish Chandra Saha v. Harish Chandra Chuckerbutty and others A I R 1923 Cal.622,

(iii) Sheikh Ketabbuddin and others v. Nafar Chandra Pettek and others A I R 1927 Cal. 230 and

(iv) Chuni Lal v. Ram Kishan Sahu (1888) 15 Cal. 460.

From the above discussion it is apparent that the two Lahore cases were not in point for the purposes of the controversy subject‑matter of the instant case and as such were wrongly relied upon.

6. On the other hand the learned trial Judge has acted rightly in placing reliance on Sahdeo v . Ram Nawal A I R 1929 All. 790, Dasrath Mahto v. Narain Mahto A I R 1941 Patna 249 and Mandakinee v. Basantakumaree A I R 1933 Cal. 884 for holding that section 91, C.P.C. did not bar the present suit.

7.The persual of the cases noted above would show that the Courts in the Sub‑Continent have consistently held that a person in the immediate neighbourhood entitled to use a local public thoroughfare has a special cause of action irrespective of the fact that he has proved special damage or not. The principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss. The inhabitants of the B vicinity of thoroughfare or residents of the village are entitled to seek removal of the obstruction without proving special damage. The learned appellate Court ignoring the above‑noted principle of law and labouring under misconception of law, proceeded to reverse the findings of the trial Court and thus acted illegally in accepting the appeal and in dismissing the suit. The jurisdiction was thus exercised illegally. The evidence on record fully establishes the existence of village pathway in the Shamlat Deh as well as encroachment and obstruction caused by the respondents‑defendants.

8. For the reasons given above, this revision petition is accepted, the judgment and decree of the learned appellate Court is set aside and the judgment and decree, dated 3‑4‑1974 of the learned trial Court is restored. The parties are, however, left to bear their own costs.

H . B . T . / A‑265/ L Revision petition accepted.