SHANKER DAYAL AGARWALA Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for in junction.

(2.) THE plaintiff has his house in Mo-halla Aliganj in the city of Banda, abutting the land in suit which according to plain tiff is a lane or public thoroughfare. The de fendant No. 2, namely, the Municipal Board, Banda made constructions adjoining the eas tern wall of the plaintiff's house. Hence, the appellant prayed for the removal of the wall made by the Municipal Board and also for a prohibitory injunction restraining the Board, for making constructions on the 10 feet land towards the last of the plaintiff's house. The suit was dismissed by both courts. The trial court recorded a finding that the plaintiff had failed to establish that there was a lane to the east of his house. This finding was reversed by the lower ap pellate court which came to the conclusion that the plaintiff had proved the existence of a lane to the east of his house but it agreed with the court of first instance on the point that the plaintiff had not been able to prove any special damage and hence the suit was barred under Section 91 of the Civil Proce dure Code. Aggrieved by that decree the plaintiff has come in Second appeal to this Court.

(3.) THE first question, therefore, which arises is as to whether the plaintiff had succeeded in proving the existence of a lane or public thoroughfare to the east of his house which was admittedly constructed afresh in the year 1964. I am unable to ac cede to the submission of the learned countructed and this was an encroachment on his legitimate rights and the action of Municipal Board in making these construc tions or making the proposed constructions in future was illegal. The undisputed fact] of the case are that the plaintiff is the owner of the house in question which abuts a lane on which a wall had been built by the Muni cipal Board just opposite his house within a distance of 10 feet and further constructions were proposed to be made in future. Pellate Court omitted to record a finding after evaluating the evidence on the question of existence of a lane. The observation con tained in the concluding part of the judg ment of the lower appellate Court was made in connection with the finding of the trial Court with regrd to the suit being barred by Section 91 C. P. C. Since the trial Court had held that the suit was barred by Sec tion 91, C. P. C. it necessarily implied that the land in question had been held to be a public thoroughfare and the plaintiff's case be treated as one of public nuisance. It was in connection with this aspect of the case that the lower appellate Court made the ob servation that according to the trial Court the land had been proved to be a lane. 1 find that the lower appellate Court applied its mind to this question and after evaluat ing the evidence of the parties came to a definite conclusion that there was a lane towards the east of the plaintiff's house. Of course, the lower appellate Court held that the plaintiff had failed to prove that he had any doors or windows towards the east of his house meaning thereby that prior to the year 1964, in which year the plaintiff pur chased the house and built it afresh, there were no doors or windows opening to the east. On that point both the Courts below recorded a concurrent finding that there were no doors or windows to the east of the plaintiff's house. Thus, the position which emerges is that the plaintiff has succeeded in proving the existence of a lane to the east of his house. Now, the question which has to be considered is as to whether when he constructed the house in the year 1964 and made doors and windows to the east open ing towards this lane, he acquired any right which was infringed by the action of the Municipal Board and whether the plaintiff was entitled to prevent the defendant Board from making constructions and could the plaintiff ask for demolition of the construc tion already made.