Mt. Shankri vs Nathu Ram

Chopra, J.—This is a civil revision filed by the Petitioner against the concurrent findings of two Courts below. A Chabutra in Mohalla Sath Ghara Patiala has been the bone of contention between the residents of the Mohalla for a very long time. In the present case Mt. Shankri who owns a house very near the said Chabutra wanted to open a door on the same. The residents of the Mohalla filed a suit for permanent injunction restraining Mt. Shankri from opening a door. The Defendant claimed right of way on the Chabutra and controverted the pleas raised by the Plaintiffs. Two issues were framed in this case:

Whether the land in dispute belongs to the residents of the Mohalla i.e., the Plaintiffs and whether the Defendant has no right to construct the door and the wall in dispute? O.P.

Whether the Plaintiffs have erred a right of easement of using the Chabutra and will the wall and the door interfere with the right of easement and are the Plaintiffs, therefore, entitled to the order of permanent injunction prayed fox by them? 0.P.

The trial Court after inspecting the spot came to the conclusion that the Chabutra had been built by the residents of the Mohalla for their own use on ceremonial occasions and that the Defendant had no right of erecting a wall or opening a door on the Chabutra. The suit of the Plaintiffs was therefore decreed. The Defendant filed an appeal before the District Judge, Patiala. The Additional District Judge also went to the spot and saw things for himself. He agreed with the findings of the trial Court and dismissed the appeal. The Plaintiffs (Defendants?) have now come up in revision before this Court.

The first point taken up by the learned Counsel for the applicant is that the Municipal Committee had accorded sanction to the Defendant to open the door in dispute and unless the Plaintiffs succeed in proving that the said sanction had been granted by the Municipal Committee mala fide they could not file or succeed in the suit. He has referred to Section 193, Municipal Act. This point was never taken up by the Petitioner in his written statement in the trial Court or even in the memorandum of revision. This objection cannot therefore be allowed to be raised at this stage. It is not purely a law point patent from the record. This objection would have necessitated the production of some evidence by the parties. If the objection had been raised in the written statement an issue could have been struck on the point and the parties could have had the chance of leading evidence. I cannot allow the case to be re-opened at this stage. Otherwise also I do not consider there is much force in the argument of the learned Counsel for the applicant. The Plaintiffs had come on the right of user of the Chabutra. The Defendant wanted to interfere with this right. The more fact that the Municipal Committee had allowed the Defendant to open a door on the Chabutra which was in the use and possession of the Plaintiffs would not debar them of their right to seek help from the Courts. The Municipal Committe which had accorded the sanction had also been impleaded as a Defendant in this case, I, therefore, reject the objection raised by the learned Counsel for the applicant.

The next point taken up by him is that the Plaintiffs had not succeeded in proving that they had a right of easement of using the Chabutra and thus to restrain the Defendant from opening the door in question. According to him the Chabutra was on Municipal land and every person of the locality had a right to use the same. The Defendant being also a resident of the Mohalla could use it like others and therefore the Plaintiffs could not stop her from opening a door of her house that side. I do not think I can take up this point in this revision petition. The learned Counsel for the Petitioner has not been able to show as to how the Courts below can be said to have acted in the exercise of their jurisdiction illegally or with material irregularity. It is a purely question of fact which has been concurrently decided by the two Courts and cannot be in any way interfered with in a revision petition.

As already remarked, this Chabutra has been the bone of contention since long. In the year 1983 one Kishen Lal who was also a resident of this mohalla applied to the Municipal Committee for permission to open a new door in the southern wall of his house on this space. The sanction having been refused Kishen Lal filed a suit in the year 1984 for a declaration that he was entitled to open a door of his house on the disputed Chabutra. The case went upto the High Court and the final decision of the case is reported as 2 patiala 229. The High Court in that case remarked that

it cannot be gainsaid that such an opening will interfere with the privacy and parda of the ladies of the Mohalla drawing water from the well. Nearly all the Mohalladara have taken very serious objection to the intended act of the Plaintiff and I cannot hold that Plaintiff, who stands by himself, is in the right as against the rest of the Mohalladars.

It may be mentioned here that there is a well also on the Chabutra and this, well is being used by all the persons living in that Mohalla. Mt. Shankri was also a party to the above referred case and she along with others objected to the right of Kishen Lal to open the door on the Chabutra. This Chabutra was again the subject matter of dispute in the year 1993. Mt. Shankri herself came to Court with a prayer that this Chabutra may be declared to be in her exclusive possession and sought an injunction against the residents of the Mohalla for the removal of all obstructions to her right of way on and user of the Chabutra. That suit also went upto the High Court and was finally decided by late S. Sukhdev Singh the then Judge High Court 19-7-1998. A perusal of that judgment shows that the learned Judge after inspecting the spot came to the conclusion that Mt. Shankri had a right of way towards the east of her house and that she could not have a right of way towards the west where there was a well. This judgment was inter-partes and even if it may not amount to res judicata as remarked by the learned District Judge it does have a great evidentiary value.

Considering all these facts the two Courts have found in favour of the Plaintiffs and decided both the issues struck in this case in their favour. I see no reason to interfere with the findings of fact arrived at by them. This revision petition is, therefore, dismissed with costs.