GOBIND RAM Vs. NIHAL CHAND AND ANOTHER

JUDGEMENT

(1.) THIS Letters Patent Appeal against the judgment and decree of the learned Single Judge has arisen out of the following circumstances :

(2.) THE defendant pleaded that the plaintiff was not owner of the site in dispute and that he and one Hukam Chand had been in possession of the stand for the last so many years.

(3.) THE learned Singh Judge from the statement of N. S. Rangaswami and other evidence produced by the parties in the case firmly came to the conclusion that the platforms on the drains situate on two sides of the plaintiff's house were built by the owner primarily to provide ingress and egress to the house and that no conditions were attached to the construction on such platforms except that no structures were to be put up thereon without specific permission of the Cantonment Board. In some cases the Cantonment Board perhaps was competent to accord permission to third persons to put up structures on the platforms built over the drains but even those were not to obstruct any window, door or any other opening in the house and that the wooden stall in dispute in fact obstructed one of the windows of the plaintiff's house. The learned Judge further observed that the wooden stall in question was not erected by Gobind Ram defendant's predecessor -in -interest in the exercise of any right of the Cantonment Board to permit third persons to build such structures and that it had evidently been done either by the owner of the house or with his consent by Gobind Ram's predecessor -in -interest to which the Cantonment Board did not object at any stage. It was also inferred that the Cantonment Board had not charged tehbazari for the area on which the wooden stall existed and that the tehbazari was being charged on two other separate pieces of land. 0' x 7' and 9' x 7' in area, situate close to it. In this view if a person constructs a platform on a drain even if he does not become owner thereof he at least enjoys a right of its user unobstructed by any person except within certain limits prescribed by the Cantonment Board, and if any third person interfere in the exercise thereof he has a good possessory title to eject such a trespasser. Since the learned District Judge had failed to apply his mind to this aspect of the case, his finding on issue No. 1 was set aside and that of the trial Court confirmed. The decision of the first appellate Court in regard to the rate of mesne profits admissible to the plaintiff was affirmed. As a consequence, the judgment and decree of the first appellate Court was set aside and the plaintiff was granted a decree for possession of the site in dispute and for recovery of Rs. 180/ - as mesne profits with half of the costs throughout against the defendant.