1975 Supreme(All) 131

Allahbad High Court
T.S.MISRA
Ranjit Singh - Appellant
Versus
Ram Nath Singh - Respondent
Decided On : 04/03/1975

Headnote:

PUBLIC PATHWAY - ENCROACHMENT - SUIT FOR DEMOLITION - MAINTAINABILITY - EASEMENT - SPECIFIC RELIEF ACT, 1963 - SECTION 4 - U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - SECTION 117 - U. P. ZAMINDARI ABOLITION AND LAND REFORMS RULES, 1952 - RULE 110-B - Whether suit for demolition of encroachment on public pathway maintainable without impleading State of U. P. as a party - Whether plaintiffs had acquired easement of passage and right to flow drain water over the pathway - Whether injunction could be granted for removal of encroachment on public pathway.

Fact of the Case:

Plaintiffs filed a suit for demolition of a wall and other constructions raised by the defendants on a piece of land commonly called Galiyara, alleging that the constructions blocked their door and the flow of drain water. The defendants pleaded that they had made constructions on their own land and that the plaintiffs had not acquired any easement rights.

Finding of the Court:

The trial court and the appellate court found that the defendants had made constructions on the Galiyara land over which the plaintiff had a right to pass through and, therefore, the constructions were liable to be removed.

Issues: 1. Whether the suit was maintainable without impleading the State of U. P. as a party? 2. Whether the plaintiffs had acquired easement of passage and right to flow drain water over the pathway? 3. Whether injunction could be granted for removal of encroachment on public pathway?

Ratio Decidendi: 1. Rule 110-B of the U. P. Zamindari Abolition and Land Reforms Rules, 1952, which requires the State Government to be made a party in suits by persons claiming the land or any of the things vested in a Gaon Sabha under Section 117 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, is not attracted to suits where the plaintiff does not claim the land vested in the Gaon Sabha, but seeks demolition of encroachment made by the defendants on the pathway. 2. The plaintiffs had not acquired any easement of passage or right to flow drain water over the pathway, but they had a right to pass through the pathway as an incident of their right of passage over the highway. 3. Injunction can be granted for removal of encroachment on public pathway, as the plaintiffs had a personal interest in the matter and the provisions of Section 41(h) and (j) of the Specific Relief Act, 1963, were not attracted.

Final Decision: The appeal was dismissed with costs.