Ram Chander and others vs Ganesh Dass

J.V. Gupta, J.—This is Defendant''s second appeal against whom suit for permanent injunction was dismissed by the trial Court but was decreed in appeal.

The Plaintiff''s suit was that he is the owner of a house situated on the South or the street in dispute. It was alleged that the said street is a Public street vesting in the Municipal Committee, Gohana, and the water spouts of the Plaintiff''s house and his doors have been opening therein, which were closed by the Defendants. It was further stated that the Plaintiff obtained permission from the Municipal Committee, Gohana, for the construction of his house, but the Defendants did not permit him to open the doors and windows and water spouts in the disputed passage In the written statement it was pleaded inter aha, that Municipal Committee Gohana was a necessary party. With respect to the disputed passage/street it was pleaded that it was not a public street and that from times immemorial the sire was left in front of the houses of the Defendants for their private use and the same was being used by the Defendants from 1947-48. It was further stated that it was in the form of a blind allay and the Defendants take their ideals in the said site and their women-folk sit therein. The right of the Plaintiff to open any apperture towards the said street was denied. The main issue between the parties was as to whether the blind lane in dispute is a public street and if not so, to what effect? The trial Court came to the conclusion that the passage in dispute is proved to be neither a street nor a public street. It was further found that it is proved on the record that only three Defendants who have their houses abutting on the passage, have been using the same for residential purposes. The passage is a blind allay on one side and gives an access to the main street. In view of this finding, the Plaintiff''s suit was dismissed. In appeal, the learned Senior Subordinate Judge (with enhanced appellate powers) came to the conclusion that though the Plaintiff has failed to prove that it a public street, but in any case it was street and, therefore, the Plaintiff was entitled to the decree for permanent injunction. Consequently, the Plaintiff''s suit was decreed. Dissatisfied with the same, the Defendants have filed this second appeal in this Court.

Learned Counsel for the Appellants contended that the lower appellate Court has made out absolutely a new case for the Plaintiff while holding that the passage in dispute was a street According to the Learned Counsel, it was never the case set up by the Plaintiff anywhere. Throughout the Plaintiff''s case has been that the passage in dispute was a public street. Having failed to prove that it was a public street, the Plaintiff''s suit was liable to be dismissed It was further contended that the earlier the Plaintiff approached the Municipal Committee for permission to open door and two windows in the southern portion of his house opening into the lane in dispute, which application was dismissed by the Deputy Commissioner vide order dated 28th November 1961 (Exhibit D4/A). This, according to the Learned Counsel, has not been considered by the lower appellate Court.

On the other hand, the Learned Counsel for the Plaintiff Respondent submitted that the whole property belonged to the Custodian. Both the Plaintiff and the Defendants have purchased the same from the Custodian Since the Defendants did not produce the side deed in their favour, the lower appellate Court railed a presumption that if produced, it would have gone against the Defendants. Thus argued the Learned Counsel, in view of this evidence, it has been rightly held that the passage in dispute was a street, if not a public street.

I have heard the Learned Counsel for the parties and have also gone through the pleadings and the evidence on the record. The Plaintiff''s case throughout baa been that the passage in dispute is a public street (Share-e-am) This plea of the Plaintiff has been negatived by both the Courts below. The lower appellate Court found that though the Plaintiff had failed to prove that it was a public street but at the same time it was of the opinion that it certainly fell within the definition of a street as defind in Section 3(13)(a) of the Punjab Municipal Act, 1911. ''Public Street'' is defined separately in Section 3 thereof Once it is found that the passage in dispute is not a public street, then the Defendants could not be taken by surprise by holding that it was a street Thus, it is quite evident that the lower appellate Court has made cut absolutely a new case in favour of the Plaintiff, which was never set up by him at any stage of the suit. In this view of the matter, the finding of the trial Court has been reversed arbitrarily on surmises and conjectures. Moreover, vide the order of the Deputy Commissioner Exhibit D4/A also it was held that the passage in dispute is not a public one. In these circumstances, the appeal succeeds, the judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the Plaintiff''s suit are restored, with no order as to costs.