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Judgment
What is the width of a public lane? This is the basic question which is required to be gone into. In the original pleadings the width was shown as
2 1/2 feet. By way of amendment it is sought to be pleaded that this width is 3 1/2 feet, This was opposed. Trial Court has refused permission to
amend the plaint, It is this order which is subject matter of challenge in this petition,
Facts in brief be noticed.
The petitioner herein filed a suit in a Civil Court at Jammu. In this suit, a prayer was made for permanent prohibitory injunction restraining the
defendants from blocking the common lane measuring 21/2 feet, by raising staircase from the lane or raising any sort of construction over the
land/street or raising any roof over the land be granted. In the heading of the plaint, the dimension of the common lane was indicated as 214 ft, In
the body of the plaint, the dimension of the lane Is again mentioned as 21/2 ft,
The defendant respondent herein filed written statement. In para 4 of the para wise reply of the written statement, a plea taken by the
respondent was that he has not blocked the lane or raised any construction in the manner alleged in the plaint. In the corresponding paras, of the
written statement, it has also been pleaded that in the lane there exists a shop of the defendant respondent which has a projection of about 11/2 Ft.
This is on the propritory land of the defendant respondent. This is towards the passage and the said shop. This was constructed more than 25
years ago, It has been pleaded that the defendant being the absolute owner in possession of the entire premises is using the same uninterruptedly
without obstruction from any quarter.
The further fact is that the plaintiff petitioner filed an application seeking amendment in the plaint. He took a plea that the width of lane is 31/2 ft,
In para 2 of the application filed under 0.6 Rule 17 of the Code of Civil Procedure it is stated that the width of lane is 31/2 ft. alongwlth the drain.
It is submitted that the 21/2 ft., has been wrongly mentioned in the plaint. This is said to be clerical error, To this application the defendant
respondent filed his reply/objections, The stand taken is that there exists a lane which has a width of 2 ft. and rest of the portion of the passage is
the property of the defendant, This is the stand taken in para 2 of the objections to the application filed seeking amendment.
This application for the amendment filed on behalf of petitioner has been projected by the trial Court, It has been observed that a valuable
admission stood made by the plaintiff In his plaint and he has to be held bound by the same. Taking this view of the matter, the application seeking
amendment, as indicated above, has been rejected. It is against this order, the present revision petition has been preferred.
The learned counsel for responded' submits that the view expressed by the trial Court does not call any interference. It is submitted that in view
of the well known principles dealing with the amendment of pleadings, the petitioner cannot be permitted to get out of admission made by him in
the plain. He is placing reliance on a decision of the Supreme Court of India. Reliance has also been placed on a judgment of Kerala High Court
and an unreported judgment of this Court in the case of Duni Chand V, Bansi Lal Civil Revision No, 13/89, decided by the Court on 5th Oct.,
1990, It is accordingly submitted by the counsel for the respondents that keeping in view the law Laid down by the Supreme Court the petitioner
should be held bound by what has been pleaded by him in the plaint.
After having heard learned counsel of the parties, I am of the opinion that the ends of justice do require that the question as to whether the width
of the lane is 31/2 ft. or 2 ft. is required to be gone into.
It is not in dispute that the lane in question is a common lane. It is accessible to public. Not only the rights of the parties to the present litigation
but the rights of all those persons who use this lane are going to be effected. Even the private property if it is accessible to public would answer the
description of term 'street'. See the definition of Street has given in Section 3(28) of the Jammu and Kashmir Municipal Act, 2008. This reads as
under:
Street shall mean any road, footway, square, court, alley or passage, accessible, whether permanently or temporarily to the public and whether a
thoroughfare or not;
and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post chain or
other barrier, if house, shops or other buildings about thereon and if it is used by any persons as a means of access to or from any public place or
thoroughfare, whether such persons be occupiers of such building or not, but shall not include any part of such space which the occupier or any
such building has a right at all hours to prevent all other persons from using as aforesaid;
and also includes the drains or gutters therein, or on either side and the land whether covered or not by any pavement, varandah or other erection,
upon the boundary of any abutting property not accessible to the public.
Again the law is well settled. The 'Street1 would embrace within itself all that portion which is accessible to public. This question was
considered by the Supreme Court in the case of Municipal Board Manglaur V. Mahadeoji Maharaj, AIR 1965 SC 1147. The Supreme Court
was of the view that Municipal Corporation cannot permit structure to be raised in a manner which may cause hindrances to the public at large.
The Supreme Court of India also took note of the fact that drains, pavements adjoining public streets are part of public streets. The Supreme
Court further took note of English and Indian decisions on the subject, as under:
At this stage it is necessary to notice briefly the relevant aspect of the law of highways. In ""Pratt and Mackenzies Law of Highways"" 20th Edn.,
at p. 4, it is stated:
Subject to the right of the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it, and as such may
maintain trespass against any member of the public who acts in excess of his right.
In Halsbury's laws of England, 3rd Edn Vol 19, at p. 49, rules of presumption and proof of dedication as stated thus:
The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware
that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but no conclusive
evidence) from which a Court or Jury may inter a dedication by the owner.
The learned author proceeds to observe at p. 55:
A dedication may also be inferred when a highway authority has used a strip of land adjoining on admitted highway for the deposit of stones or by
cutting grips, or has, as of right and without permission, piped in and levelled the site of a road side ditch.
In Harvey v. Truro Rural Council (1903) 2 Ch 638 at pp. 643644, Joyce, J., makes the following interesting observations which are relevant
to the present enquiry:
In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way prima
facie, and unless there be evidence to the contrary, extends to the whole space between the fences and the public are entitled to the entire of it as
the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and
footpassengers.
Adverting to the open, strips of land on the sides of the road, the learned Judge observed:
...as Lord Tenterden observed in Rex V. Wright (183203 B and Ad, 681 (683): 37 RR 520. The space at the sides"" (that is of the hard road) is
also necessary to afford the benefit of air and sun. If trees are hedges might be brought close up to the part actually usewd as a road it could not be
kept sound.
These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of
the road. Suhrawardy, J., in Anukul Chandra V. Dacca Dt. Board AIR 1928 Cat 485 at pp. 486,487, after considering the relevant English
decisions on the subject summarized the English view thus:
The expression 'road' or 'highway' has been considered in many cases in England and it seems that the interpretation put there is not confined to
the portion actually used by the public, but it extends also the side lands.
The learned Judge applied the English view to the construction of the words 'public street or road' in art 146 A of the Limitation Act, and
stated:
I am of the opinion that Toad' in that art includes the portion which is used as road as also the lands kept on two sides as parts of the road for the
purposes of the road.
So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra V. Sudarshan Das Shastri, ILR 37 All 9 at 0.11: AIR 1914
All 341, at p. 342 defined 'road' so as to include the lands. Therein it was observed:
...in our opinion all the grounds whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled
part The Court would be entitled to draw the inference that any lane over which the public from time immemorial had been accustomed to travel
was a public street, or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the
unmetalled portion on each side any the less a public road of street.
That a public street vests in a Municipality admits no doubt. Under Section 116(g) of the UP. Municipalities Act, 1916 (UP. Act II of 1916)
all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on
or appertaining to such streets"" vest in and belong to the Municipal Board. A Division Bench of the Madras High Court in S. Sundaram Ayyar V.
Municipal Council of Madras, (1962) ILR 25 Mad. 635, dealt with the scope of such vesting under the Madras District Municipalities Act, 1884.
The head note therein brings out the gist of the decision, and it reads:
When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil
over which the street exists. It does not own the soil from the centre of the earth usqute and caelum. but it has the exclusive right to manage and
control the surface of the soil and so much of the soil below, and of the space above the surface as it necessary to enable it to adequately maintain
the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against
trespassers.
It was thereafter concluded as under (AIR 1965 SC 1147, Municipal Board Manglaur V. Maharaj, at p. 1149; ""The law on the subject may
be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of
the highway so dedicated depends, upon the extent of the user. The sidelands are ordinarily included in the road, for they are necessary for the
purpose of maintenance of the road. In the case of pathway used for a long time by the public, its topographical and permanent landmarks and the
manner and mode of its maintenance usually indicate the extent of the use.
In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side
lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by
the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to
manage and control the surface of the soil and 'so much of the soil below and of the space above the surface as is necessary to enable it to
adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a
possessory action.
Therefore, the question as to what is the width of the lane has necessarily to be examined in the light of the definition of the street given in the
Municipal Act and in view of the observations made by the Supreme Court of India referred to above. The admission made by any of the parties
would not affect this aspect of the matter. Had the plaintiff gone to the Court with a plea that the width of the lane is only one feet would that
determine the issue in question. The answer to this is 'no'. If this be the situation then independent of the prayer of the petitioner to seek amendment
of the suit the trial Court is required to determine the width of the lane in question. In doing so, it would take notice of the definition given in the
Municipal Act and also the judgment of the Supreme Court of India noticed above. In the face of this situation the grant or nongrant of application
under O.6 R.17 of CPC, would loose significance. However, with a view to bind down the parties and with a view to adjudicate upon the rights of
all concern, it would be apt to allow the application seeking amendment of the plaint. By doing so, even if some admission is sought to be taken
away that would not influence this Court. This is because an admission which would ultimately operate contrary to the provisions of statute noticed
above and would be contrary to the law Laid down by the Supreme Court of India cannot be permitted to remain and should not confer benefit on
any of the parties. In view of the above, this revision is allowed. The plaint, shall stand amended. Respondents shall file his written statement to the
amended application. Trial Court to proceed accordingly.
21 Disposed off accordingly.