Ishwari Prasad Chaudhari and Others vs Dulhin Gunjeshwari Devi

Adami, J.—The three suits out of which these second appeals arise wore practically between the same parties.

One Hiralal Singh had a 1-anna proprietary interest in mouza Purani Sarai He died in 1897, leaving a will and probate proceedings, which were taken after his death, resulted in a settlement between the members of his family. Under that settlement the 1-anna share of Hiralal fell to Mt. Chandrani Harilal''s mother and Mt. Brijbasi Kuer, his widow, for life, and, after their deaths, was to be divided between Hiralal''s cousins, Babu Lakshmi Narayan Singh and Baldeo Singh and their father Manorath Lal Singh. Under the terms of the settlement two residential houses situated in mouza Purani Sarai were allotted to the granddaughters of Hiralal Singh subject to the life-interest of the mother an widow of Babu Hiralal Singh. Some time after the settlement these ladies sold one of the houses, known as the "godoWi house," to the wife of Babu Lakshmi Narayan Singh, Dulhin Gunjeshwari Devi, and Dulhin Gunjeshwari Devi took possession of the house and lived is it. She was the plaintiff in suit No. 108, while Babu Lakshmi Narayan Singh, was the plaintiff in the suit No. 109 of 1921.

Defendant 1, Babu Ishwari Prasad Chaudhari, purchased a house to the east of the "godown house" from the grandson of his uncle Durga Prasad Chaudhari. Ishwari Prasad Chaudhari anfl his family had a proprietary share in the village, but in 18 4, they dedicated this interest of theirs to Sri Thakur Nawal Kishore, Janki Ram and Jagarnathji, and the idol thus obtained the proprietary interest and the Chaudharis gave it up.

The subject of dispute between the parties is a lane to the east of the godown house leading up to the main road and another lane leading from that lane to the east, and yet a third lane leading from this lane to the east down southwards. It was complained by the plaintiffs in Suits Nos. 108 and 109 that the defendants had obstructed the lane to the east of the "godown house" and in Suit No 109 that the lane D R on the map leading south from the lane C D had been encroached upon by a building of a kitchen by the defendants. Mt. Dulhin Gunjeshwari Devi claimed that as owner of the "godown house," she had acquired a right to pass by the lane A to C and C to D and that the defendants had obstructed her access to the lane by building a wall to its west, and had also obstructed her use of the lane by making a building M N O P extending from their plot 16 right across the lane. It is also complained that the defendants had built a gateway across the lane at Q. In the plaint it was claimed that she had a right of easement. She sought for a declaration of her right to easement and declaration that the defendants first party had no right to encroach upon and obstruct the pathways; she asked for the removal; of the gate at Q, and the building M N O P so far as it encroached upon the pathway and also she asked for a permanent function restraining the defendants first Thirty from interfering in any way with her; right of using the pathways A B C D. Her husband Babu Lakshimi Narayan Singh in Suit No.109 claimed the removal of the obstruction caused by part of the kitchen which had been built on the pathway D R on the ground of his being a co-sharer landlord of the village, or at least on the ground of his having a vested right to the interest of a co-sharer landlord. The third suit was instituted by Babu Ishwari Prasad Chaudhari against Dulhin Gunjeshwari Devi seeking an order for the removal of an alleged obstruction to a drain on the west side of the pathway A to B caused by an out-"house built by Dulhin Gunjeshwari Devi. The other proprietors of the mouza were made pro forma defendants in Suits Nos. 108 and 109.

The defence of the defendants first party in Suits No. 108 and 109 was to the effect that A B, C D and D B, were not pathways and that the plaintiffs had no right of way upon them or any easement. They alleged that the disputed lands were part of their plot 16 which has been purchased from the grandson of Durga Prasad Chaudhari. They pleaded limitation and claimed that they had a right to use the land occupied by the alleged pathways as their own.

Mt. Dulhin Gunjeshwari Devi had instituted another suit previously claiming that the defendants had obstructed her right to light and air and also a right of way through a doorway marked K on the map by building a wall to the west of the lower part of the lane A B. That suit related only to the portion of the lane extending from Q to B. On appeal in this Court it was found that the plaintiff could not succeed, having failed to prove the right she claimed.

The Courts below, in the present case, have carefully omitted to pass any decision with regard to the portion of the lane from Q to B since at the time the judgments were passed by the two Courts the matter was still under appeal in this Court. It is clear that the decision of this Court as to the portion Q to his final and the plaintiff cannot succeed with regard to the portion of the lane, though it seems that in that previous case the plaintiff did not make any claim of the right of way over the portion of the lane Q to B; she merely asked for a declaration of her right to pass through the door at K.

In the present case Dulhin Gunjeshwari Devi asserts that she has access to the lane through the door at G in the northern part of the lane and that the defendants by building a wall on the west side of the lane have obstructed her access to the lane.

The learned Munsif went into the cases very carefully and studied the law as to easements and rights of way. He found in the first place that the lane A B and C D do not, as claimed by the defendants first party, form part of the land conveyed to Ishwari Prasad Chaudhuri by a kabala from the grandson of Durga Prasad Chaudhuri and in this finding the lower appellate Court has altogether agreed with the Munsif.

Prom the documentary evidence, as shown by the judgments of the Courts below, there can be no doubt that the portion of plot 16, which was purchased by the defendants first party, does not include the land claimed to be a part of the pathway A B and C D. Further the learned Munsif in the Court below has found that A B and C D are in fact pathways and that they are used by the residents of the village as such. The lower Courts have found further that the plaintiff Dulhin Gunjeshwari Devi and her predecessor-in-interest have for more than 20 years used these pathways in order to reach the main road and for other purposes and that therefore, the plaintiff in Suit No. 108 has a right of way over those two pathways. It is not denied that the defendants first party have made the buildings and obstructions complained of and in Suit No. 108, having come to the findings I have mentioned, the learned Munsif has passed a decree giving the plaintiff''s right of way as an easement over the pathways A to Q and C D, that is to say, the whole of A B, except the portion which was in dispute in the previous suit. The decree directs the removal of the construction on the pathway A to Q within three months time from the date of the Munsifs judgment and he issued a permanent injunction, restraining the defendants first party from interfering in any way with the plaintiff''s right of using the pathways A Q and C D.

11 With regard to the prayer of the plaintiff that the gateway at Q should be removed, the learned Munsif found that the suit was within time and held that the gateway had been constructed within two months of the suit. In Suit No. 109 the learned Munsif also found that the kitchen built by the defendants first party in 1917 obstructed the pathway D R and that it encroached upon the gair mazrua land of the proprietors of the village. I may note that in the Record of Rights plot 16 and the land which these pathways cover are shown as gair mazrua. Since Babu Lachhmi Narayan Singh had, at the time of the suit and at the time that judgment was passed, only a vested interest in Suit No. 109, the learned Munsif gave a decree declaring that the defendants first party had no right to make any encroachment and raise any construction on pathways A to Q, CD and D R and that the construction made by the defendants first party over part of A Q and the kitchen house raised over part of D R shall not bind the estate of the plaintiff. He refused in that suit the consequential reliefs so far as the removal or demolition of these constructions were concerned but directed that a permanent injunction should issue against the defendants first party, restraining them from raising any further construction over the pathways A Q, C D and D R.

The learned Subordinate Judge upheld the findings and decree of the Munsif but he disagreed with the Munsif only so far as the question of limitation with regard to the gateway at Q was concerned; he held that the gateway at Q had not been constructed within two months of the suit and therefore, no relief could be granted so far as that gateway was concerned. With regard, to this latter finding: it is to be noted that the learned Subordinate Judge remarks in his judgment that, as Babu, Lachhmi Narayan Singh in Suit No. 109, was suing as having a vested interest in the proprietary right the limitation in his case would be a period of 12 years. That being so it is not easy to understand why the claim in Suit No. 109, with regard to the gateway at Q should not have been allowed, for admittedly the gateway was constructed by the defendants first party within 12 years of the suit.

Before us it was contended that Dulhin Gunjeshwari Devi in her suit could not succeed on the ground of easement. It is true that on the ground of easement she could not succeed, for, on the findings, there is no dominant and servient tenement; the term easement was evidently quite loosely used in the plaint, and what the plaintiff claimed was that she has a right of way over the pathway A B and C D. The defendants first party cannot claim any right over A Q and C D or DR, for it is shown that these pathways do not cover any land which was purchased by the defendants first party, and thus the encroachments are mere trespasses. As a matter of fact Dulhin Gunjeshwari Devi is shown in Register D as having a proprietary share in the village, and, therefore, she would have a right to object to the trespass by the defendants first party on to the gair mazrua belonging to the maliks of the village. The Courts below, however, have found that this lady and her predecessors have been using these lands for over 20 years and have obtained a right of way. It cannot, I think, be contended that on the findings of fact of the lower Courts the plaintiffs were not entitled to have the obstruction made by the defendants first party removed.

Before this Court there has been really no serious contention that in case of Dulhin Gunjeshwari Devi the decisions of the lower Courts were wrong. It is with regard to the obstruction made by the kitchen of the defendants over the land D R that the learned advocate has directed his attack. It is pointed out that Babu Lachhmi Narayan Singh at the time of the institution of the suit and during the appeal had merely a vested interest in the proprietary right and that vested interest amounted only to a three-pies share. It is argued that since Mt. Brajbasi Kuer who, after the death of Mt. Chandrani, was in the possession of the one anna share of Hiralal, had not objected to the construction of the kitchen and that the other co-sharer landlords had refused to join in the suit with Babu Lachhmi Narayan Singh, the latter could not claim more than to obtain joint possession of his share so far as the land covered by the kitchen was concerned. It is contended that he could not insist on the demolition of the kitchen on the ground that it has been built on gair mazrua land of the maliks.

Before the appeal came on for hearing Mt. Brajbasi Kuer died, and therefore. Babu Lachhmi Narayaa Singh is now in full possession of his three pies share in the village. It is true that Mt. Brajbasi Kuer did not join in the suit, but there is nothing to show that either she or the rest of the co-sharer landlords gave her consent to the construction of the kitchen. There can be no doubt that the kitchen does encroach upon the land at D E which used to run straight north to south but is now diverted and narrowed. The contention in the lower Courts was that the land covered by the kitchen did not form part of the pathway or the gair mazrua land of the maliks; it was nowhere there contended that Babu Lachhmi Narayan Singh could make no further claim than to get joint possession of the kitchen. This point has been raised here for the first time and I would not be inclined to interfere with the findings come to by the lower appellate Court, it being so clear that the kitchen is an encroachment by the defendants, and there being no evidence to show that the other, co-sharer maliks agreed to the construction of the kitchen.

The question arises whether, since the status of Babu Lachhmi Narayan Singh has changed during the litigation and since he is now the actual proprietor of a three-pies share, the decree of the lower Courts should be varied accordingly. At the time the lower Courts passed their decree Babu Lachhmi Narayan had no right to ask for the demolition before Mt. Brajbasi Kuer died, but now he has that right.

In the case of Rai Charan Mandal v. Biswanath Mandal [1915] 20 C.L.J. 107 it is laid down that a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions, where it is shown that the original relief claimed has by reason of subsequent, change of circumstances become inappropriate or that it is necessary to base the decision of the Courts on the altered circumstances in order to shorten litigation or to do complete justice between the parties. This is a case I think in which effect should be given to the altered circumstances, and the decrees of the lower Courts should be altered to allow the plaintiff, Babu Lachhmi Narayan Singh, the relief which he would have been able to claim had he been the proprietor of the share at the time of the institution of the suit.

We come now to the appeal of Babu Ishwari Prasad Chaudhari relating to the alleged encroachment by the building of the out house at the north east corner of the godown house compound. That appeal arises out of Suit No. 141 of 1921. The lower Courts have dismissed the suit finding that the pathway A to Q does not belong to Babu Ishwari Prasad Chaudhari and that he has no right to the drain on the western side of the pathway. It was also held that there was no eacroachment on the drain. The learned advocate for Babu Ishwari Prasad Chaudhari does not wish to press this appeal, but he is anxious to connect the drain to his house with the drain on the western side of the pathway and on that condition he consents not to press the appeal. The defendants in Suit No 141 are quite willing to let him have the connexion with the drain so long as the pathway is not in any way obstructed by that connexion. With regard to the gateway at Q, it having been found in the previous suit that Dulhin Gunjeshwari Devi is not entitled to any rights over the pathway Q B, the question whether there should be a gateway at Q is somewhat immaterial. There is really no reason why it should not be allowed to remain.

The Courts below have purposely omitted to give any decree with regard to the portion of the pathway Q B, and I do not think that it is at all necessary to direct that the gateway at Q should be demolished even though Babu Lachhmi Narayan Singh being entitled to rely on the limitation of 12 years, might claim that the obstruction at Q is one which should be removed.

The result is that the appellant fails in all three appeals. In the second appeal arising out of Suit No. 108 of 1921, the decree of the lower Courts is upheld but the time for the carrying out of the order for the removal of the obstructions is extended so as to allow the defendants first party three months from the date of this judgment to effect the removal.

The decree in Suit No. 109 of 1921 will be modified to this extent that instead of declaring that the constructions made by defendants first party over part of A Q and the kitchen raised over part of D B shall not bind the estate of plaintiffs and directing that the consequential relief so far as the removal of the kitchen house at D E and the platforms raised in A Q as shown in the map be disallowed, there shall be substituted a direction that the plaintiffs shall get a decree directing the defendants to remove the constructions on the pathway A Q and so much of the kitchen as obstructs the pathway at D E within three months time from the date of the judgment, failing which the plaintiffs shall be entitled to remove them, the costs of which removal defendants first party shall bear.

With regard to the second appeal arising out of the Suit No. 141 of 1921: the decree of the lower Courts will be modified to this extent that the plaintiff Babu Ishwari Prasad Chaudhari shall be entitled to connect the drain of his plot 16 with the drain running on the west of the nathway A Q provided that no obstruction is caused to the said pathway by the said connexion.

The respondents will get their casts in each of the appeals.

Bucknill, J.

I agree.