Satyanarayan and Another vs Murarilal

Siadatali Khan, J.—This is First Appeal No. 66, register No. 2 of 1953. The suit of the Plaintiffs, Satyanarayan and Dharamchand, for perpetual injunction was dismissed by the First Court, City Civil Courts, on 5-8-1953. Hence this first appeal. A Division Bench of this Court, having regard to the feelings the case has aroused, while granting an injunction from day-to-day during argument, decided at last to hear the appeal itself and, hence, this appeal is now before us,. We have heard the lengthy argument of the learned advocates of the parties. We record our opinion below.

The Plaintiffs'' allegations are that to the west of Gulzarhoua on the road to Saher Batil Kaman there is Shyambai Street which goes right upto the Urdu Street; that at the point where Shyamabai St. meets the public road of Urdu St. there is a door that all the pedestrians from the Urdu St. and the denizens of the Shyamabai St. go to Charkaman and Gulzarhou, through this door; and hence this is a public read and a very old one; that through this road pipeline and electric wire have been taken to the houses of the Plaintiffs and other denizens of the Street; that the public drain to all the houses in the street also goes through this street; that there is a Dharmshala in the Shyamabai St. by name ''Suk Bhavan'' that marriages take place there and the marriage processions go through this door and over this road; that recently the land adjoining this door has been purchased by the Defendant, Murarilal; that he has constructed a motor-garage, a wall of which abuts on the street and has also roofed the door intending to close this road and, therefore, the garage wall constructed on a portion of the street land should be demolished and the attempt of the Defendant to thus narrow down and close the public way be prohibited by a permanent injunction.

The Defendant,'' on the other hand, has alleged in the written statement that the Shama Bai lane is a blind alley and ends at house No. 13/2 some distance away from his land and does not go upto Urdu St.; that he has purchased four houses in front of the Dargah of Shaikji Hali; that the chief door of these houses opens on the Urdu St. and is not a public door but his private property used by him and his tenants only for access, to the Urdu St.; that between the place where Shama Bai lane ends at house No. 13/2 and his door there are numerous private houses including his own property and there is no public road; that nobody has a right to walk over his land and through his house by this door either from Urdu St.- or the Shama Bai lane; that there is no Dharmshala in the Shyama Bai lane and no marriage'' procession from there goes through this door; that he has been constructing on his property according to his needs after obtaining permission of the Municipality that the Plaintiffs petitioned against him in the City Criminal Courts and in the Municipality and in both places their petitions were dismissed.

In support of the above allegations oral and documentary evidence was adduced. The Plaintiffs produced seven witnesses and the Defendant four. The trial court after consideration of the evidence has held that:

(i) All the witnesses of the Plaintiffs depose to their walking over this way and through this door without let or hindrance;

(ii) As there is no door on the other side, pedestrians finding it a short-cut were wont to go through it to Urdu St. and the tenants of the house did not bother to stop them; but that this does not make the way intended for the tenants of the two rows of houses a public way or the property of the Government, and that

(iii) The presence of the door signifies that the land adjacent to it was protected and was not dedicated to the public.

The learned advocate for the Appellant started with the argument that there is here a right of easement also but soon gave it up and confined himself to the only contention that there is merely a right of public way through the door and the adjacent land under consideration. He argued that he has adduced respectable witnesses, Vakils or sowcars of the locality, who have deposed to the place in dispute being used as a street or public road-way for the last 50-60 years and against this no sowcar or respectable person has come into the witness-box for the Defendant and that except for D.W. 4 Rahimuddin, none of the witnesses adduced by the Defendant even resided in the locality; that his case is wholly proved by the Municipal plan; that the symbol for a lane in the Municipal plan is one thick line and one thin line; that such lines run through the place and right upto the door in dispute and, therefore, the oral testimony of his witnesses is borne out by the Municipal survey plan of 1914.

In support of his contention he has cited--Mannada Mudali v. Nallaya Gounden 32 Mad 527 (A) and--Vibudapriya Thirthaswamy v. Esoof Sahib 35 Mad 28 (B) among other cases. In 32 Mad 527 (A), it was held that the continued user by the public of a way raises a presumption that that way belongs to the public and that it has been dedicated by the owner for the public use. The case of--Parquhar v. Newbury Rural Council 1908 Ch. 586 at P. 596 (O) was relied on wherein Warrington J. has held that:

The law appears to be this that continued user by the public of a way raises a presumption that that way belongs to the public; that it has been dedicated by the owner for the public use for which it has been used and further that it is not incumbent upon the public to show by what particular owner the road has been dedicated. If dedication is possible, dedication will be presumed.

In--''35 Mad 28 (B)'', it was held that:

Where user as a high-way sufficient to raise a presumption of dedication has been proved, the dedication will, in the absence of evidence to the contrary, be presumed, if possible, to be unrestricted.

It was observed further that:

The road in dispute is a part of a big trunk road; its origin is lost in antiquity. The public used it as a thoroughfare from time immemorial. Indication must be presumed from the user as a high-way whoever was the owner of the site at the time of dedication. The presumption will be general and against all persons and Crown is also no exception to it.

It will be seen that the Plaintiffs-Appellants case is wholly summed up in the above two quotations, viz., that there has been a public user of the road for over half a century, and this indicates dedication.

It should, however, be noted that the weight: of the evidence of user depends upon several factors:

(a) Length of user as a-public way. It has been'' held in several cases that eight years, four years] and even 18 months are sufficient;

(b) The nature of the land. On this point it has been held that:

The nature of ''Locus in quo'' is also material. If a man builds a row of houses with a road in front opening into an old highway ''at each end'', and sells or lets them, the slightest evidence of public user will suffice.

(c) It would seem that in a country district It is necessary in order to establish a public right of way by proof of user alone to show that such way leads from one public terminus to another. In such a case dedication may be inferred if the owner has allowed the public ''to spend the money'' in improving the road but where this is not the case an inference unfavourable to him ought not to be drawn from the fact the public may have been freely permitted to derive enjoyment from access to private property.

(d) The next important consideration is how far the owner has acquiesced. User of way is less cogent evidence of dedication if the land-owner is non-resident, at any rate if he has no agent on the spot, than if he is resident, for if he did not know that the way was being used, no inference can fairly be drawn from his non-interference.

(e) Another important consideration is that that user must be as of right and in this connection it has been held that:

Upon the question of intention to dedicate, a single act of interruption by the owner is til much weight than many acts of enjoyment by the public. Thus the closing of a way for one day in every year disproves any such intention.

If a person has been interrupted or returned, then

User by such person is valueless as evidence of, dedication and will usually outweigh evidence oil user by other persons.

On the other hand, if such a person defies the owner and the owner has not taken any legal proceedings, then:

It may be inferred that the owner knows that the way in question has been dedicated in title past.

(f) Placing of notice-boards declaring a road to be private or of bars, negative every intention to dedicate. A locked gate is in the same category. Prom an unlocked gate the inference is not so clear for the owner may have erected it to keep the cattle from straying or may have intended to dedicate the way subject to his right to maintain the gate.

(g) A highway may be dedicated only for one or more of the recognized kinds of traffic; for instance, a road for a particular class of wheeled traffic or the bank of a river for towing purposes only. Where a highway is thus dedicated subject to an obstruction, the public must take it as it is.

As already stated the above are the various factors on which the weight of evidence of user depends. We will have to determine from evidence on record, oral or documentary, how far these factors are established in this case.

A brief resume of the evidence is, therefore, given below: (After giving a resume of the oral evidence, pf the witnesses of the Plaintiff and the Defendant his Lordship proceeded to consider that documentary evidence.

The documentary evidence filed by the Plaintiff includes Exs. 2 and 3 being the sale-deeds of one Sher Khan and Ram Fershad Shivnarayan. They are adduced to show that in both of them a public-.way is on the west which means the Shama Bai lane alter the curve at Suk Bhavan and right upto some paces from the Plaintiff''s house. Exhibit 4 is the award of the arbitrators giving the house to the Plaintiff in which he now resides. No document is exhibited as Ex. 1. Exhibit A-l is the sale-deed by which the Plaintiff purchased the four houses which formed the two rows of rooms, the land in-between them and the land at right angle towards north of them leading to the door in dispute on the Urdu St. Exs. A-2 and A-3 are the plan and the permission given by the Municipality to the Defendant to build not only the garage but also the wall in front of the Plaintiff''s house and at the end of the land between the two rows of rooms.

To this may be added the Municipal survey drawn in 1914 which the Respondent had filed and on which the learned advocate for the Appellants has also relied much.

In our opinion the documentary evidence including the municipal plan is not of any help in forming an opinion whether there is any right of way between the two rows of rooms and on the land in the north of them leading through the door in dispute to the Urdu St. No doubt, the learned advocate for the Appellants has argued that the municipal plan of 1914 proves his case conclusively, as all through the Shama Bai lane from its start on the Sahirbathil Kaman road right upto the door in dispute there are two lines showing a street. This is so. But evidently this is inclusive (conclusive?).

It should be remembered that if we forget for the moment the door in dispute, the only outlet for the denizens of Shama Bai lane, whether we take it to be the lane alleged by the Defendant or the lane alleged by the Plaintiff, is towards the Gulzarhouz-Sahirbathil Kaman road. Hence, every resident of the street, whether at its inception near Suk Bhavan or at its farthest end in the two rows of the rooms, will have to go to the main Gulzarhouz-Sahirbathil Kaman road through this way only. So in this sense this is a way, but the whole question is whether this way was used by the public to go to Urdu St. also.

The municipal plan does not show any road at the place where the door in dispute is shown now. D.W. 2 a clerk of the Municipal office, has deposed that it is wall, lie was cross-examined and he said that there is no symbol on the reverse of the municipal plan showing a wall. Still, as he has deposed that he knows the plan his statement that there is a wall is not totally devoid of weight. Thus it will be seen that the municipal plan does not help in the determination of the question whether the public use the way between the two rows of the houses, and the door in dispute towards the Urdu St. Similarly, Exs. 2 and 3 may very well show that there is a way on the west of the houses shown in the plan. Evidently, there is a way and which may mean the way to Gulzarhouz-Sahirbathil Kaman road.

It is difficult to see how does it signify that it is a way between the two rows of the rooms and and through the door to the Urdu St. Thus, as already stated, the documentary evidence is of no help in the determination of the question now under consideration whether the public use the way now under consideration as a public way.

We will now try to form an opinion in the light of the oral evidence adduced regarding the various factors which lend weight to the evidence of user. The learned trial Judge has found that the public have used this way. Accepting this finding for the moment we have to examine it in the light of the various factors which contribute weight to the user. The first factor is length of user. We have already noted above in paragraph 6 above that even 18 months user is enough. So we will assume for the moment that according to the Plaintiffs there has been user of this way for much more than 18 months. The next factor is the nature of the land. We have mentioned above in paragraph 6 that if a man builds a row of houses with a road in front opening into an old highway at each end, and sells or lets them,, the slightest evidence of public user will suffice.

It must now be examined whether this factor is also present in this case. No doubt, there are two rows of houses and at the south end of it there is a way to the Sahirbathil-Gulzarhouz road but at the other end, the Urdu St. is not at the end of the two rows but there is a piece of land at right angle to the two rows of houses and leads to the door in dispute. Hence it is not quite accurate to say that the two rows of houses are built with a public road at each end. This will be so, if we forget the piece of land at right angle to the two rows of houses and it will not be so if we do not forget it.

Coming to the third factor which is that it is necessary in order to establish a public right of way by proof of user alone to show that such way leads from one public terminus to another. We have just shown that the way from the two rows of houses leads to one public terminus at Gulzarhouz-Sahirbathil Kaman road but it does not at the other, end, if we take into consideration the piece of land at right angle to the two rows. But if we overlook this piece of land, it does lead from one public terminus towards Gulzarho.uz to another towards Urdu St. But it should be noted that in such a case dedication can be inferred only if the owner has allowed the public to spend money in improving the road, but where this is not the case an inference unfavourable to the owner ought not to be drawn from the fact the public may have been freely permitted to derive enjoyment from access to private; property. We will not examine the evidence of the parties on this point, namely, whether public have spent any money on improvement or maintenance of the road.

There is nothing on this point in the evidence of P.W. 1. P.W. 2 has also stated nothing directly on this, but he has only stated that he has seen the repairs to the door but cannot say who has done it. He has also said that he does not know who sweeps and cleans the way. P.W. 3 is the Plaintiff himself and he has stated that nobody repairs the road but regarding the municipal sweepers he has deposed that the municipal sweepers sweep the road from Charkaman upto his house and the municipal sweepers from the Urdu St. sweep it upto his house. In this statement he is not supported by any other witness. P.W. 4 has stated dead-against the Plaintiff himself by stating that he has not seen anybody repairing the road. P.W. 3 has deposed that the municipal sweeper sweeps the Shama Bai lane but has added that he cannot say whether they sweep upto the Plaintiff''s house. If he is not definite in this statement that they sweep upto the Plaintiff''s house, it is difficult to hold that they sweep the land between'' the two rows of rooms further ahead.

P.W. 6 has also made a general statement that the municipal sweepers sweep the way, but when cross-examined, ho Hays that he has never objected to the road not being sweeped by them. P.W. 7 has also deposed that he does not remember whether any repair was done to the road and he is silent on municipal sweepers sweeping the way. As against this, D.W. 1, the Defendant himself has deposed that he used to repair the courtyard which is claimed to be the way and that he and his tenants used to sweep it. He is supported in this statement by D.W. 3. We have to decide between, these two contrary statements. We have inspected the site and in our opinion, weight should be attached to the evidence adduced by the Defendant for as we have remarked in the inspection notes, the land between the two rows of the rooms does not look like a road as it contains no ''moram'' and appears to be a courtyard between the two rows of rooms.

Thus, in our opinion, this alleged road or way is not maintained by the public and the public or the municipality has not spent any money on its repair or maintenance. The total absence of any person from the municipality among the witnesses of the Plaintiffs, be he a sweeper or an officer of the Municipality, lends support to our above view. Thus, as the public or the municipality has not been shown to spend any money, no inference adverse to the Respondent-owner can be drawn from the fact that the public was allowed to pass, even though it may have been freely permitted to derive enjoyment from access to private property.

The next important consideration is the extent of owner''s acquiescence. As already stated, evidence of user is less cogent evidence if the owner is non-resident. In this case, the owner is resident if we look to the Respondent, but if we look to his predecessor-in-title, Nawab Saif Nawaz Jung, he was non-resident. This means that evidence of user before 1350 P., is less cogent than the same evidence after 1356 P. And in both eases it is subject to what follows in the next paragraph.

As already stated, regarding intention to dedicate, a single act of interruption by the owner is of much weight than many acts of enjoyment by the public. It should be noted that the existence of a gate or a locked gate also is an act of interruption and negatives the intention to dedicate. Thus the question of interruption becomes important and we have to And from the evidence on record whether the user was with interruption or without it.

Of the Plaintiffs witnesses, Nos. 2 and 3, have no doubt deposed that nobody interrupted them while passing through the door to Urdu St. and P.W. 4 has stated that the door was fixed by the men of the locality from fear of thieves and yet has deposed that it was always kept open and P.W. 5 has deposed that during the Razakar days the door was closed always, but P.W. 1 has deposed that since the purchase by the Respondent and since the arising of the dispute between the parties, the public were interrupted. This witness has deposed further that the door was closed sometimes in the night.

As against this, D.W. 1, the Respondent himself, has deposed that he used to close the door in the night and the passage through the door was meant only for his tenants and himself and not for the public and D.W. 3 has deposed in explicit words that he was born in one of the rooms in the two rows of houses and that the door was exclusively used by the tenants thereof and that public used to pass through the door by permission only and that he used to close the door himself in the night and that during the Razakar days, the door was closed night and day.

D.W. 4, a man of the locality, has also deposed in explicit terms that during the days of Nawab Saif Nawaz Jung who was the predecessor-in-title of the Respondent the public were prohibited to go through this door. This is, on this point, all the evidence on record. It is evident that some of the Plaintiff''s own witnesses have deposed not only to interruption since the purchase of the place by the/Respondent but also to the closing of the door during night and during Razakar days even in the day. Even if we leave these Plaintiffs'' witnesses alone and confine our attention to those who have deposed to particular statements that they themselves were not interrupted, there is here oath against oath of the Defendant''s witnesses who depose to interruptions and passage of the public by permission and the closing of the door every night.

In such circumstances when there is oath against oath, we have to look to the other records of the case to decide on which oath we are to rely. Here the presence of the door itself is an important indication about the intention to dedicate. There is no meaning in keeping the door and repairing it constantly if the intention was to dedicate. The fact that during the days of danger in the Razakar regime, the door was closed shows the purpose for which it was fixed, namely, the security of the tenants of the two rows of the rooms. This also negatives the intention to dedicate.

Thus, as has been held in-- Surendra Nath Saha and Others Vs. Harendra Kumar Saha and Others, (D), wherein reference is given to--Attorney General v. Atrobus 1905 2 Ch 188 (E), in which Parwell, J. held that:

in no case has mere user''by the public without more been held sufficient.

The explanation of this is that the user should be as of right and there must be intention to dedicate. In this case itself it was held that there was no intention to dedicate as the road in dispute was in course of 80 years repaired by the owner of the soil and never at the expense of the public. We have already held above that the place between the two rows of rooms and the place in the north of the two rows of rooms docs not look like road as it is not a ''morram'' road but courtyard of ordinary soil just like a courtyard in a house surrounded by compound walls. We have also stated above that no person of the municipality, be he a sweeper or any officer, has come forward on behalf of the Plaintiffs to state that the road was maintained repaired or cleaned by the municipality.

In the circumstances we are at a loss to hold that there was any intention to dedicate. No doubt the road ends at a public terminus, but as has been shown above, this alone is not enough unless it is also shown that it is maintained at public expense. This has not been proved. The question of acquiescence of the owner is also not in favour of the Plaintiffs for Nawab Saif Nawaz Jung was a non-resident-owner and a man of the locality. D.W. 4, has deposed that in his time the public were prohibited. We are compelled to give weight to his evidence because of the presence of; the door. There remains the indication of there being a public road on both ends. On careful'' analysis, this is a factor which taken with public user might be sufficient to establish the place as a public road but only if it is further proved that this public user was as of right and because the way was dedicated; the presence of the door, however, robs this factor of there being a public terminus on both ways of its significance as it negatives the intention to dedicate. Thus on careful consideration we are of the opinion that this is no public way.

In the result this appeal shall be dismissed. But before I direct the same, I must say a word or two about the two title-deeds filed with an affidavit three or four days ago. They are the certified copies of the title-deeds by which the Defendant has acquired some other property in the lane. The learned advocate for the Appellant has argued at the last hearing that as they are genuine documents the delay in filing them may be condoned. He has relied on them to show that in them also the Shama Bai lane upto the Appellant''s house is shown to be an open lane (Koochai nafiza). He has argued that this will show that long before the present dispute this lane was a thoroughfare.

The learned advocate for the Respondent has argued that there is no reason for condoning the delay. These documents could have been filed on or before the framing of issues. They were in existence and no reason is advanced why they were not then filed. He has also argued that ''kuchai nafiza does not mean an open lane. The word in opposition to ''kuchai sarbasta'', that is, a blind alley is not ''kuchai nafiza'', but is ''kuchai am''; i.e., ''kuchai am'' is an open alley. No doubt, a law lexicon or two have shown ''kuchai naliza'' to mean an open alley. But the word ''nifaz'' or ''nufooz'' only means enforcement, employment, use or user. The literal meaning of the word ''kuchai nafiza'' is a lane which is used by public. Etymologically, it does not mean an open lane. It only means a lane which is in constant use. The words in the title-deeds are ''kuchai am''. Therefore, it is for consideration whether they do not mean only the way to Gulzarhouz-Sahir-isathil Kaman road.

I am satisfied that having regard to the reasons stated above, this additional evidence filed at a very late stage does not help the Appellants. I, therefore, dismiss the appeal without costs. Appeal dismissed.

Srinivasachari, J.

My learned brother has dealt in extenso with the facts and the evidence in this case and I agree with him in the conclusion arrived at. I desire to add a few words of my own as the question of a public right of way has come up for discussion before us.

A high way or a thoroughfare may be created by Htulule or may come into existence through dedication whereby an individual land owner may permit the general public the right to pass or repass over his land. The term ''dedication'' implies a gift. It may be by means of a document but it is not necessarily through a deed that a dedication would be made; sometimes it is presumed from custom or user. The essential ingredient in order to come to a conclusion as to whether there has been a valid dedication by an owner of a land is that it must be proved that there is a clear intention on the part of the owner to dedicate his land accordingly. There must be, in other words, ''animus dedicandi'' on the part of the owner and the user by the public must be based on the sanction'' received from such intention of the owner. Sometimes long open user of a way by the public leads us to a presumption that the land was dedicated as a high way. But this presumption is a rebuttable presumption. It has also to be noted that a user, however long it may be, may not have the effect of raising a presumption of dedication by the owner if there is a single act of interruption by the owner. A single act of interruption in these cases is of much more weight than many acts of enjoyment. On these principles it would have to be determined as to whether there was a valid dedication or not with reference to the particular circumstances of the case.

It is clear from the plaint as well as from the arguments advanced before us by the learned advocate for the Plaintiff that the Plaintiff''s case is that it is a public thoroughfare. He does not claim that he has a right of easement viz., a right of way to pass over the Defendant''s land. Certain features of the land over which right of way is claimed were brought to our notice and it was contended by the learned advocate for the Respondent that these factors went to show that it was the private land of the Defendant and there could not have been any user by the public.

In this regard the Defendant''s learned advocate drew our attention to the fact that there was a well situated on the disputed land which belonged to the Defendant. It was also urged that there was a door actually fixed through which the public had access to go into the street named ''Urdu Sharif. Evidence has also been led of interruption of user by the Defendant and his predecessor. The fact that there was a ''Chowkat'' (door frame) and there was fixed to it a door, which used to be closed sometimes and sometimes not closed, it was urged, went only to show that there was interruption in the user by the public.

There are certain factors which would be taken into consideration in order to determine as to whether a particular land was a thoroughfare or not. One of such factors is as to whether that particular road is either drained, lighted or cleaned by the Municipality as generally a public street would be.

As was held by their Lordships of the Privy Council in the case of--''Mohd. Eustam Ali Khan v. Municipal Committee, Karnal City AIR 1920 PC 43 (F), the fact that what is claimed as a public street is neither drained, lighted or cleaned by the Municipality ''would not appear in ordinary circumstances to form a public street''. There is no evidence in. this case led on behalf of the Plaintiff to show that the Municipality was getting the place drained, cleaned or lighted. It was very easy for the Plaintiff to have produced evidence from the Municipality showing that this place was being cleaned by the Municipality. Another factor which would have thrown much light on the fact an to whether this could be regarded as a public street is as to whether this land was repaired by public funds. This would have been a very cogent evidence.

Ordinarily one would expect a public thoroughfare to be maintained and kept in good repair by the residents of the locality if it was a public street. We find that there is no evidence of the public having expended money on the repairs of this land. The evidence that has been led on behalf of the Plaintiff, no doubt, is to-the effect that people used to pass freely through this lane to go from Gulzar Nouze to Urdu Sharif. But it is also in evidence that sometimes the door leading to the Urdu Sharif locality used to be closed. Of course, it is explained by some of the witnesses that during the razakar atrocities this used to be closed as a measure of security. It is not clear from the evidence as to who used to close it, who possessed the key of the door and who it was that opened it.

It should have been made clear by evidence that a member of the public had the key of this door with which it used to be opened and locked. There is no such evidence. The municipal plan that has been filed by the Defendant which is of a date about 40 years prior to the institution of the suit does not help the Plaintiff''s case either. There is no mention in the municipal plan that that was a public street within the control of the Municipality.

The evidence in this case, in my opinion, falls far short of the evidence required to hold that the Plaintiff has been successful in establishing that this was a public thoroughfare. I am, therefore, in agreement with my learned brother that this suit must fail. The appeal is, therefore, dismisses having regard to the particular circumstances of the case no order is made as regards costs.