BHAGWANTI Vs. JIUTI

JUDGEMENT

(1.) THIS appeal by defendant No. 2 arises in the following circumstances. The plaintiff and one Mst. Bhurki purchased the southern half portion of premises No. D-3/36 situate in Mohalla Shivala, Bhelpur Ward Varanasi on 26th of November, 1964. After some time the plaintiff and Smt. Bhurki partitioned the premises and thus the half northern portion thereof came to then share of the plaintiff and the southern portion fell to the share of Smt. Bhurki. A partition wall was raised between the two portions. The main door of the house for egress and ingress purposes abutted the settlement plot No. 1709 which is a public street. The plaintiff alleged that she and Smt. Bhurki and their predecessor in title had always enjoyed the right of passage to and from the said premises over the public street as of right without any hindrance and obstruction from anybody. Defendant No. 1 Nagar Mahapalika of the City of Varanasi, however, wrongly and illegally granted a lease of a portion, of the said plot No. 1709 to defendant No. 2 on 9th November, 1964. This fact came to the knowledge of the plaintiff only when defendant No. 2 started encroaching upon the portion of said plot No. 1709 in such a way that the plaintiff's fight for egress and ingress to her house was threatened to be completely affected. The plaintiff raised an objection to the same but to no avail. She approached the Nagar Mahapalika and the police authorities. The Nagar Mahapalika issued notice to defendant No. 5 for demolition of the wall which defendant No. 2 had constructed treating the same as unauthorised. The said wall Virtually and practically blocked the only passage for egress and ingress to the plaintiff's house. Defendant No. 2 thereupon filed the suit against the Nagar Mahapalika for injunction restraining the Nagar Mahapalika from demolishing the wall and other constructions in question. The plaintiff filed an application in that suit for being impleaded as a party, but that application was opposed and the court disallowed it with the remark that she might agitate her right in a separate suit hence the plaintiff filed the suit which has given rise to this appeal against the Nagar Mahapalika and defendant No. 2 for an injunction ordering defendant No. 2 to remove all constructions which she had raised and which would be obstructing the passage for egress and ingress to the plaintiff's house and to restrain the defendant from doing any act over said plot No. 1709 which might prejudicially affect the plaintiff in her enjoyment of free passage over said plot No. 1709.

(2.) THE suit was resisted by defendant No. 2. She alleged that the land over which the constructions in question had been made formed part of the house which is adjacent to the house of the plaintiff. She further alleged that she had obtained a lease of the land in dispute from the Nagar Mahapalika and has had every right to make constructions on the same. She denied that the plaintiff had any right of passage over any portion of the land in question and that no door of house No. B-3/36 ever opened on that land. It was further alleged that even if there was any partition between the plaintiff and Smt. Bhurki, the plaintiff should have adjusted the equities and the rights of passage inter se and she could not create any fresh rights in her favour with regard to the passage on the land in dispute. The Nagar Mahapalika in its written statement pleaded that it was entitled to lease-out the portion of the public land vesting in it and the plaintiff had no right to complain against the same. Further, it was alleged that if the plaintiff had any right of passage over the portion leased out to defendant No. 2, the plaintiff was free to enjoy it and that the Nagar Mahapalika would not put any hindrance in the way of the plaintiff. The Nagar Mahapalika also contended that the constructions made by defendant No. 2 were unauthorised but on account of a temporary injunction granted by the court, the constructions could not be demolished. Khasra Bandobast and a sale-deed of 1933 and other documents (were filed to prove that plot No. 1709 is a public lane. The trial court on a consideration of the evidence on record found that the said plot is a public lane and that the main door of the plaintiff's house always existed towards east and opened on the said public lane and that the said plot No. 1709 was used as a passage by the plaintiff for egress and ingress purposes to her house. It further held that the said plot No. 1709 never formed part of the house of defendant No. 2. The trial court, therefore, decreed the suit and directed defendant No. 2 to remove the constructions in dispute within one month failing which the same were ordered to be demolished through court. Against that decision defendant No. 2 preferred an appeal. The appellate court below on re-appraisal of the evidence found that the land of settlement plot No. 1709 which adjoined to the house of the plaintiff and defendant No. 2 was being used as Abadi Rasta and it was a public way. It also found that the door of the plaintiff's house existed and opened on the disputed land before the objectionable constructions had been raised by defendant No. 2 and that the plaintiff had enjoyed the right of passage through her door of the house over said plot No. 1709 prior to the constructions raised by defendant No. 2. These findings are findings of fact and are conclusive. The appellate court below further held that the lease granted by the Nagar Mahapalika to defendant No. 2 was not valid. The lease-deed had not been executed by the Mukhya Nagar Adhikari but had been executed by the Sahayak Nagar Adhikari who had no power to do so. The said deed, therefore did not confer any right on defendant No. 2 to raise any construction on the said land. The appellate court below, therefore, dismissed the appeal. Aggrieved, defendant No. 2 has come to this Court on second appeal.

(3.) IT was next urged that the appellate court below had erred in holding that the lease granted by the Nagar Mahapalika was invalid. It was established from the evidence on the record that settlement plot No. 1709 is a public pathway. It is one of the duties of the Nagar Mahapalika to construct, maintain or repair public roads and streets. It cannot grant any lease of any portion of the public street or public road to the prejudice of any person whose house abuts on the same. The lease in the instant case was found to be invalid. The lease deed was admittedly executed by Sahayak Nagar Adhikari and not by the Mukhya Nagar Adhikari. It was urged on behalf of the appellant that the Mukhya Nagar Adhikari had delegated his powers to the Sahayak Nagar Adhikari to execute lease deeds on behalf of Nagar Mahapalika. Clause B of sub-section (1) of Section 119 of the Nagar Mahapalika Adhiniyam provides that :