RAM CHANDER Vs. GANESH DASS

JUDGEMENT

(1.) This is defendant's second appeal against whom suit for permanent injunction was dismissed by the trial Court but was decreed in appeal.

(2.) The plaintiff's suit was that he is the owner of a house situated on the South of the street in dispute. It was alleged that the said street is a Public street vesting in the Municipal Committee Gohana, and the water spouts of the plaintiff's house and his doors have been opening therein, which were closed by the defendants. It was further stated that the plaintiff obtained permission from the Municipal Committee, Gohana, for the construction of his house, but the defendants did not permit him to open the doors and windows and water spouts in the disputed passage. In the written statement it was pleaded, inter alia, that Municipal Committee Gohana was a necessary party. With respect to the disputed passage/street it was pleaded that it was not a public street and that from times immemorial the site was left in front of the houses of the defendants for their private use and the same was being used by the defendants from 1947-48. It was further stated that it was in the form of a blind allay and the defendants take their meals in the said site and their women-folk sit therein. The right of the plaintiff to open any aperture towards the said street was denied. The main issue between the parties was as to whether the blind lane in dispute is a public street and if not so, to what effect ? The trial Court came to the conclusion that the passage in dispute is proved to be neither a street nor a public street. It was further found that it is proved on the record that only three defendants who have their houses abutting on the passage, have been using the same for residential purposes. The passage is a blind allay on one side and gives an access to the main street. In view of this finding, the plaintiff's suit was dismissed. In appeal, the learned Senior Subordinate Judge (with enhanced appellate powers) came to the conclusion that though the plaintiff has failed to prove that it was a public street, but in any case it was and, therefore, the plaintiff was entitled to the decree for permanent injunction. Consequently, the plaintiff's suit was decreed. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

(3.) Learned counsel for the appellants contended that the lower appellate Court has made out absolutely a new case for the plaintiff while holding that the passage in dispute was a street. According to the learned counsel, it was never the case set up by the plaintiff anywhere. Throughout the plaintiff's case has been that the passage in dispute was a public street. Having failed to prove that it was a public street, the plaintiff's suit was liable to be dismissed. It was further contended that the earlier the plaintiff approached the Municipal Committee for permission to open door and two windows in the southern portion of his house opening into the lane in dispute, which application was dismissed by the Deputy Commissioner, vide order dated 28th November, 1961 (Exhibit D4/A). This, according to the learned counsel has not been considered by the lower appellate Court.