BANSHI BHOLA Vs. NIJANAND BRIJBALLABH TIWARI

JUDGEMENT

(1.) THE plaintiff came to the Court with a plea that there is a passage on which his window and a door is located. He pleaded that he is having access to his house from the door which opens on the land in question. This claim of his was denied by the defendant. The trial Court dismissed the suit. On an appeal, the first appellate Court allowed the appeal. It came to the conclusion that the passage in question is a passage which is accessible to public and the appeal was allowed. It is against the above judgment and decree, the present appeal has been filed.

(2.) THE argument raised by the appellant is that none of the parties had gone to the Court with a plea that the passage in question is a public passage. He, accordingly submitted that the findings recorded by the Court below cannot be sustained.

(3.) IT be seen that the plaintiff had gone to the Court with a specific plea that there is a particular passage on which his doors and windows open and that he is having access to his house from the door in question. If this be the position, then it may be possible to conclude that the passage in question falls within the definition of the "street" as occurring in Section 3 (36) of the Madhya Pradesh Municipalities Act, 1961. This provision reads as under:" street" means any road, footway, square, court, alley or passage, accessible, whether permanently or temporarily to the public whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post chain or other barrier, if houses, shops or other building about thereon, and if it is used by any persons as means of access to or from any public place or thoroughfare, whether such persons be occupiers of buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid, and shall include also the drains on either side and the land whether covered or not by any pavement, verandah or other erection, which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property be private property or property reserved by the State Government or by the Council for any purpose other than a street. "