Mahadev Parshad and ors. vs Dhumi and ors.

G.C. Mital, J.—A look at plan Exhibit P1. would show that the two green portions are possessed by the plaintiffs and the defendants portion is shown on the eastern side. On the Southern side of the defendants'' house is the Sehan which is in dispute.

The plaintiffs came to Court for claiming a prohibitory and mandatory injunction on the plea that the Sehan was jointly used by the parties since times immemorial and the water from their house used to flow towards the north through the passage and common compound (Sehan) and they also enjoyed light and air and the defendants has now constructed wall (AB) as a result of which their access to the Sehan was blocked. They also claimed certain other reliefs. The suit was opposed by the defendants and they denied that the Sehan and the alleged passage was common of the parties. The trial Court by judgment and decree dated 25.3.1972 decreed the plaintiffs'' suit for prohibitory injunction, restraining the defendants from obstructing ingress and egress to their houses and also from the joint user of the Chowk (Sehan) and also from obstructing the flow of water from the house of the plaintiffs. A decree for mandatory injunction was granted to remove the wall `AB'' constructed in front of the plaintiff''s house within a period of one month. On defendants'' appeal, the lower Appellate Court by judgment and decree dated 6th February, 1978 allowed the appeal after recording a finding that the property in dispute vests in the Shamilat Deh and without impleading the proprietors of the Shamilat Deh, the suit could not proceed and was not maintainable. This is second appeal by the plaintiffs.

Shri Gopi Chand, Advocate, appearing for the plaintiffs, has urged the Naksha Kashra Abadi Ex. P11, Aksh Shajra P10, Shajra Kashra Abadi P4 to show that the property No. 5 was Shamilat Deh Rasta and property No. 5 is Sehan in dispute and, therefore, the plaintiffs were entitled to use Sehan as a Rasta and the defendants could not set up wall `AB'' to block their passage to the Sehan.

The argument is controverted by Shri Hari Mittal, Advocate, appearing for the other side. In reply, he has urged that the decision of the lower Appellate Court is correct.

After hearing the learned counsel for the parties and on consideration of the matter, I am of the view that Naksha Khasra Abadi Ex. P.11 of 1932; Shajar Khasra Abadi Ex. P4 of 1932 and Akash Sharja P10 clearly show that the Plot No. 5 is Shamilat Deh Raste since then and houses of the parties abut thereon. Once the property is shown as Shamilat Deh, Rasta which is the common passage and the plaintiffs'' house abuts on it, they are entitled to the use of Sehan. The finding of the learned Appellate Court that the plaintiffs are not proprietors in the village would not take away their right to use common places set up in the village. The places of common user earlier vested in the proprietary body and after the coming into force of the Punjab Village Common Lands (Regulation) Act, 1961 all Shamilat property which is for common use of the residents of the village vests in the Panchayat and as a resident of the locality of the village, a nonproprietory is entitled to use pathways. Hence, to this extent the decision of the lower Appellate Court is reversed.

Once it is found that the plaintiffs have a right to passage through the common Rasta, the defendants had no right to build wall `AB'' and decree for mandatory injunction granted by the trial Court, for the removal of the same is hereby restored. Since the Sehan is Shamilat Deh Rasta for use by the residents of the locality, neither the plaintiffs, nor the defendants would raise any construction or obstruct the use of the same by each other. However, the suit of the plaintiffs for taking out water from their house to the Sehan and for other allied matters, as claimed in the suit, would stand dismissed.