Bashiruddin vs Ramprasad

S.B. Sen, J.—The undisputed facts of the case are that Ramprasad, Plaintiff purchased a house in Krishnapura Main Road Indore from one Mukundram Trivedi in 1951, who purchased it from the Indore Municipality some years back. The house is situated in municipal limits Indore with the following boundaries:

On the North there is a Krishnapura main-road and on the East there is a main-road leading to Nandlalpura. On the West and South there were houses with which we have no concern.

On the East there is a foot-path abating the eastern boundary of the house belonging to Ramprasad Plaintiff. On the foot-path there are a number of Goomtis, the two out of which are situated in such a way that one cannot come to the main-road from the eastern side of the house. These goomtis are there for a number of years, occupied by various persons with the permission of the Municipality.

The Plaintiff Ramprasad has filed a suit against the Municipal Committee and also imp-leaded the licensees of the goomti for removal of those goomtis. According to him those goomtis are coming in the way of enjoyment of his private right in respect of the property in as much as he cannot enter the public road by the eastern side of his compound.

The Defendants opposed the claim on various grounds but only the following grounds have been urged before me for nonsuiting the Plaintiff:

That the goomtis have been there almost since the foot-fath was built and therefore when the Plaintiff purchased the house he must have purchased with eyes open to the curtailed enjoyment of the premises.

As the Municipal Committee was the original owner and as owner the municipal Committee as well as Mukundram Trivedi, the immediate predecessor in title enjoyed the premises with that curtailed right, the transferee viz., the Plaintiff cannot have better enjoyment of the premises.

The Municipal Committee has a statutory power to lease or give on license permission for building Goomtis and therefore the Municipal Committee cannot be asked to curtail the right which the statute has given even though the owner of the adjacent premises cannot enjoy the same fully.

The private right of way as opposed to public right, cannot be exercised when there is a ready another convenient way. The private right of way can only be exercised in the front. This he has got a ready and therefore he has no cause of action against the Municipality, who has been exercising right allowed under law.

He relied on 1934 All ER 437, Halsbury Laws of England Vol. 19 page 78 and (1879) 12 Ch Div 261.

Grounds 1 and 2 may be taken together. The answer can be found in Section 11 of the Transfer of Property Act. Part first of this section reads as follows:

Where on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

The private right of way out of the house is a more of enjoyment and therefore Section 11 clearly bars such a restriction on the enjoyment of the property. Though the sale deed is not on record but the counsel agree that there was an absolute transfer. Even assuming there was a restriction clause, it would be repugnant to an absolute interest. Therefore that restriction cannot be imposed. The grounds 1 and 2 come to this that the Plaintiff must have purchased what Mukundram had from the Municipality. But as Section 11 (sic)bid bars such a restriction, the Plaintiff cannot be said to have purchased the house with that curtailed enjoyment. The learned Counsel for the Appellant however referred to me to the second part of Section 11 of the Transfer of Property Act. I do not think that this can help him at all. No direction has been made or alleged to have been made in any deed of transfer nor is there anything on record to show that such a direction must have been made for the purpose of securing the beneficial enjoyment of another piece of such property. What the learned Counsel for the Appellant means that the beneficial enjoyment of the streets it was necessary for the Municipality to transfer a curtailed right. Such an argument is preposterous. Whether the Municipal Committee owns the street as property is another question about which I will deal later on; but it cannot be said that for the beneficial enjoyment of the streets the goomtis are necessary. What has vested in the Municipal Committee is the street, and not the land constituting the Street.

About the curtailed enjoyment for a number of years which the Appellant says for more than 20 years, I do not think that also can help him. This is a continuing wrong. All the Courts in India are agreed on this. See, AIR 1937 94 (Lahore) , AIR 1942 All. 77 Mt. Masoona v. Haji Mohammad to quote a few Therefore the number of years for which the Municipal Committee has been keeping those Goomtis is not very material to the decision of this case.

Halsbury's Law of England, Third Edition. Vol. 19 page 78 has been relied on:

An owner of the land adjoining a highway is entitled to access to such highway at any point at which his land actually touches it..................

The private right of access is subject to the public right of passage which is the higher right, but the right of passage of the public is also subject to the private right of access to the highway where the adjoining owner can exercise that right by means which do not amount to a serious obstruction to the right of passage and are not therefore inconsistent therewith.

The right of acess is not limited to the right to pass from the premises to the way and vice versa, but includes the right of access to a well on the boundary of the premises. Where a foot walk intervenes between the carriageway and the adjoining premises, the owner of such premises if he also owns the soil usque ad medium filum vive is entitled at common law to access accross the footwalk to the carriageway for any kind of traffic which is necessary for the reasonable enjoyment of his premises, and will not, as he proposes to conduct it, cause a substantial nuisance; and it seems his rights are the same even if he does not own the soil of the highway.

It does not help the Appellant. On the other hand it is against any owner of land adjoining the highway is entitled to access to such a highway at any point.

The 12 Ch. Div (1879) 261 Moody v. Steggles relied on by the Appellant also does not help him. In that case the Plaintiffs were the owners of a public-house and claimed the right to affix a sign-board to the wall of the Defendants'' house. The sign-board had been so affixed for upwards of 40 years. The two houses formerly belonged to the same owner, the Defendants'' house having been granted away by him before the Plaintiffs'' house. When be first became owner of the two houses the Plaintiffs'' house was not occupied as a public-house. It did not however appear whether the signboard was first affixed to the Defendants'' house during the common ownership. It was held in that case that the easement claimed was a legal one and that a grant of it by the Defendants'' predecessors-in-title to the Plaintiffs'' predecessors-in-title must be presumed. In the instant case the question is not of any easement and the Goomtis that have been built on the pavements were according to the Appellants were under certain permission granted to them. There was no question of easement in this case.

1934 All ER 437 Morhall v. Blackpool only decides the frontager's access to roadway across pavement being absolute. This case does not decide the point urged by the Appellant that if there is an access by one side the owner of the land cannot have access by the other side, to the Highway.

In Dwarka Prasad Singh and Others Vs. Patna City Municipality and Another, it has been observed that a person has put up a wall on his land which abutted on a public road will not deprive him of his right of having access from his land to the road at any place he chooses. In the same case the following observations are also pertinent and against the argument put forth by the Appellant:

Road-side land vests in and belongs to the Municipality in the same manner as the road itself, and the Municipality can exercise no rights over it except such as are authorised by law and must otherwise leave it as it is. It is not competent to the Municipality to make an income by putting up substantial buildings on road-side lands through leases while largely destroying the value of the abutting properties to private owners.

The Division Bench of the Patna High Court in Patna City Municipality Vs. Dwarka Prasad Singh and Others, on page 687 has observed:

The owner of land abutting a road way is entitled to access to that roadway at all points on his boundary.

I fully agree with the views expressed in Patna cases.

In this connection AIR 1937 94 (Lahore) may be referred. The view of the Lahore High Court is "lessee from a Municipal Committee erecting building on public street on grounds leased to him and thus preventing Plaintiff's access to highway from his property is a continuing wrong. "It appears that from time to time the Goomtis are built and the Municipal Committee does not give any body any permanent lease Every year a fresh lease is given, though in this case do such document has been produced by the Appellant or the Respondent supporting the case of the Appellant.

In Emperor Vs. Vishvanath Nana Karpe and Others, their lordships have observed:

A strong presumption arises that the legislature did not intend, by the general powers it gives to the Municipality to discontinue or stop up public streets, that they should use that power for a purpose which contravenes the intention shown by S. 122.

From a perusal of all the cases cited above the view is that the Municipal Committee has no power to lease out a portion of the public street to the detriment of the right of the owners by the side of the street. It is no doubt true that the roads vest in the Municipality but the roads vest as roads. The reading of Section 48 of the M. B. Municipalities Act corresponding Section 36 (g) of the Indore Municipal Act and Section 82 (g of the Municipal Corporation Act will show that the Municipality holds the streets for Municipal purposes. I have already observed that the purposes of the street cannot be served by having Goomtis. The purpose for which the streets are vested in the Municipality is only for the use of the streets as such. Therefore the Municipal Committee cannot claim general ownership of the street It has got only a limited right.

The appellate Court has relied on a case reported in AIR 1955 Sau. 63 Talakchand v. Dhoraji. The learned Counsel for the Appellant tried to show that the decision was not correct, but as my view I have already expressed from the cases cited above is in agreement with the view expressed in the Saurashtra case, I agree with the decision arrived at by the lower appellate Court and do not see any force in this appeal.

The appeal is dismissed with costs. Counsel fee according to scale, if certified.