Bhag Singh and Others vs Sewa Singh and Others

Teja Singh, C.J.—The facts of the ease out of which this second appeal has arisen may be shortly stated. The defendants opened a door in a land which the Plaintiff claimed as their own property. On this the Plaintiffs brought a criminal complaint against them. The case was compromised, the defendants agreed to close the door and stated in the deed of compromise that was written on the occasion that the land in which the door had been opened belonged to Patti Khara and that the defendants had no right of way therein. It appears that some time later, the defendants reopened the door. On this the Plaintiffs brought another criminal complaint against them but it was dismissed. Aggrieved by the order of the Magistrate in the second case Plaintiffs brought a civil suit against the defendants for a mandatory injunction that the defendants be ordered to close the door and be restrained from opening it in future. The suit was resisted by the defendants mainly on the ground that the land in which they had opened the door was not the private property of the Plaintiffs and was a part of a throughfare. They also contended that the door had been in existence for many years and the Plaintiffs had no right to have it closed. The trial Court held that the door had been opened only 21/2 years before the suit but refused to decree the Plaintiffs claim on the ground that the land in which the door opened did not exclusively belong to the Plaintiffs and that it was a part of a thoroughfare. On appeal S. Haqiqat Singh, Additional District Judge Barnala set aside the decision of the trial Court and decreed the Plaintiffs'' suit. The defendants are the Appellants before me.

The first question to be determined is one of fact, viz., whether the land in which the door opens was a part of the thoroughfare. The Appellants'' counsel drew my attention to the, statements of Jangir Singh and Nahu Ram, witnesses for the Plaintiffs who admitted in cross-examination that the land was a thoroughfare. It, however, appears to me that their statements on this point were either not quite correct or as the District Judge has remarked, they were under a confusion because there was a thoroughfare near about the land. The other witnesses for the Plaintiffs averred that the land was the property of Patti Khara and I am inclined to think that the position taken up by them was correct. In addition, it may be mentioned that in the first criminal case that was brought by the Plaintiffs against the defendants, the defendants unequivocally admitted that the land was the property of the Plaintiffs'' patti and the defendants had no right of way in it. This fact by itself demolishes the defendants'' contention because if the land was part of a thoroughfare everybody including the defendants would have a right of way over it. This point is decided against the Appellants.

It was then urged by the Appellants'' counsel that even if the land belonged to the Plaintiffs no injunction could be issued to the defendants for closing the door and in support of his contention he referred me to a single Bench decision of the Lahore High Court-''Kashi Nath v. Ram Jiwan'' AIR 1933 Lah 847 (A). The following were the observations made by the learned Judge in that case:

It is conceded that every owner has got the right of open apertures in his own wall and unless by doing so he invades the privacy or any other preexisting and well established right vested in his neighbour, the latter cannot force him to close the apertures. The neighbour''s remedy is to build on his own land or otherwise obstruct the apertures.

With all deference I cannot accept this view. In the first place I consider that when a man opens a door in another man''s land he interferes with the right of the latter to use that land without obstruction because the existence of the door would naturally enable the former to pass over the land or to trespass into it. Secondly, if the person in whose land the door is opened sits silent and does not take any action for closure of the door, after the lapse of twenty years the opener of the door might come forward with the plea that he had acquired an easement either of light or of right of way over the neighbour''s land and this would certainly subject the owner of the land to a great hardship or it may lead to an irreparable injury. The argument that the owner of the land can take any other steps for closing the door such as building a wall in front of it, ignores the fact that this would compel the person concerned to incur an expense which he might not be able to bear or which he may not like to bear if left to himself. Accordingly, I hold that the injunction is the only remedy in a case of this kind.

The result is that the appeal fails and is dismissed with costs.