1960 Supreme(Raj) 280

High Court Of Rajasthan
Judgename : I.N.Modi
MOOLCHAND - Appellant
Versus
CHHOGA - Respondent
Second Appeal 45 Of 1955
Decided On : 11/07/1960

A person who has a customary right to use a public right of way is entitled to a mandatory injunction ordering the removal of an obstruction to the right of way, even if the person has not suffered any special damage as a result of the obstruction.

Headnote:

RIGHT OF WAY - PUBLIC NUISANCE - SECTION 91 C. P. C. - SUIT FOR DECLARATION AND INJUNCTION - SPECIAL DAMAGE - PUBLIC RIGHT OF WAY - VILLAGE PATHWAY - CUSTOMARY RIGHT - PRESCRIPTIVE EASEMENT - MANDATORY INJUNCTION - DELAY - ACQUIESCENCE - LACHES.

Fact of the Case:

Two suits were filed, one by Moolchand and his son Jawarmal and Dharamchand, and the other by Girdharilal and three others as representatives of the residents of Mohallas Sisodiya, Nawapura and Gogajikigali and Gogajika-bas. The first suit was for a declaration that the patta which defendants had obtained from Thikana Beda be cancelled and that a perpetual injunction be granted restraining them from raising any kind of construction on the land in dispute. The second suit was for a declaration that the land ABCD was Rasta and that the plaintiffs had a customary right to use this land for purposes of passage. The trial court decreed the plaintiffs' claim in toto. The defendants then went in appeal to the learned Senior Civil Judge Sirohi who allowed the appeals and dismissed the plaintiffs' suits.

Finding of the Court:

The court held that the land ABCD was a public right of way and that the plaintiffs had a customary right to use it for purposes of passage. The court also held that the plaintiffs had not proved that they had suffered any special damage as a result of the defendants' obstruction of the right of way. However, the court held that the plaintiffs were entitled to a mandatory injunction ordering the defendants to remove the obstruction.

Issues: 1. Whether the land ABCD was a public right of way? 2. Whether the plaintiffs had a customary right to use the land ABCD for purposes of passage? 3. Whether the plaintiffs had proved that they had suffered any special damage as a result of the defendants' obstruction of the right of way? 4. Whether the plaintiffs were entitled to a mandatory injunction ordering the defendants to remove the obstruction?

Ratio Decidendi: 1. The court held that the land ABCD was a public right of way on the basis of the following evidence: - The pattas granted by the Thikana Beda to the plaintiffs' predecessors in title described the land ABCD as a passage for houses. - The oral evidence of the plaintiffs' witnesses established that the land ABCD had been used as a passage for time immemorial. 2. The court held that the plaintiffs had a customary right to use the land ABCD for purposes of passage on the basis of the following evidence: - The pattas granted by the Thikana Beda to the plaintiffs' predecessors in title described the land ABCD as a passage for houses. - The oral evidence of the plaintiffs' witnesses established that the land ABCD had been used as a passage for time immemorial. 3. The court held that the plaintiffs had not proved that they had suffered any special damage as a result of the defendants' obstruction of the right of way. However, the court held that the plaintiffs were entitled to a mandatory injunction ordering the defendants to remove the obstruction on the basis of the following principles: - A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it where a case for grant of this relief is otherwise made out. - Such delay, however, to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. - There can be no question of any of these circumstances in the instant suits for the first suit had been brought by the plaintiffs there before any structure was at all built on it and the delay even in the bringing of the second suit cannot be characterised in the circumstances as amounting to any of these things in view of the fact that the first suit had already been brought and plaintiff Moolchand is a common plaintiff to both the suits and an ad interim injunction had been applied for and passed. - A further principle to bear in mind is that where an injury caused to a person or persons would constitute a sort of a perennial trespass--a trespass day In and day out -- upon his or their rights, normally a mandatory injunction is the only appropriate remedy.

Final Decision: The appeals were allowed, the judgment and decrees of the learned Senior Civil Judge were set aside, and those of the trial Court were restored. The defendants were allowed one month's time from the date of the judgment to remove the impugned structure on the land ABCD in plan Ex. 1 themselves; but should they fail to do so, the plaintiffs would have the right to have the same demolished by execution at the expense of the defendants. The plaintiffs were awarded one set of costs in each suit from the defendants throughout. Leave for further appeal was refused.