HANUMAN PRASAD Vs. RAGHUNATH PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiffs asked that a certain portion of a recently constructed building, which had been put up by the defendant, might be removed inasmuch as it was interfering with a right of way which the plaintiffs had in respect of the houses they occupy. Shortly, their case was that for a period of over 40 years they had been accustomed to travel by foot, with ekkas and carts over what is marked upon the map before us as "public way BBBB." They traced the origin of this public way by saying that at one remote period, round about 1864, the land was covered with houses, which, at some date not specifically stated, fell down, and that for a very long period of time there were marks of where the houses had been and portions of the ruined houses; that there arose a practice of passing over the site of the ruined houses, and that, for a period longer than is necessary to obtain a prescriptive right, ekkas and carts and foot passengers had uniformly, openly and without interruption passed to the houses lying to the east along this denned route. Recently the defendant having purchased the land, has erected buildings upon it. The particular building which is said to interfere with the right of way is the smaller southern rectangular building. According to the map, it completely blocks out the old route and a new-road appears to the south and is indicated by letters YY, but the plaintiffs complaint is that YY is only 4 11" in width whereas the previous public way was more than 6 7" wide. The lower appellate court accepted the contention of the plaintiffs that the building of the smaller southern rectangular portion of the house vas an infringement of the right of way which they had acquired, and though the pleadings indicated a private right of way, the discussion in the courts seemed to have opened out until this fight of way was being talked of as a public right of way. To our mind the matter is not one of great practical importance, because what the plaintiffs are complaining of is the particular damage which they now suffer, inasmuch as, whereas formerly they were able to drive ekkas and carts right up to their houses, they are now compelled to leave those ekkas and carts some 400 or more yards away from their houses. It has been contended by Dr. Katju that this action is not competent to be brought by the plaintiffs, because they have not suffered particular damage over and above that which other people have suffered; but that is not quite a complete statement of the law, because, although the plaintiffs must show a particular damage, it is clear that the infringement of a private right of this kind has been recognized as being particular damage in the case of individual members who enjoyed access to the highway from adjoining property, and if authority were needed for that passage, it is to be found in the case of Lyon V/s. Wardens of Fishmongers Co. (1876) 46 L.J.R. Ch. D. 69 at 80 Lord Selborne said, after referring to several authorities: These authorities recognized such a right of immediate access from private property to public highway as a private right distinct from the rights of the owner of that property to use the highway itself as one of the public.

(2.) THEREFORE the plaintiffs in this case can be regarded in two capacities, one as ordinary members of the public in relation to this road, and, secondly, as having a particular right in it by virtue of the long user. In our opinion the decision of the learned Judge of this Court cannot stand. It is certainly not in conformity with the case of Mahant Ram Chaudhri V/s. Joti Prasad (1910) 8 A.L.J. 19, nor with the case of Bhawan Singh V/s. Narottam Singh (1909) I.L.R. 31 All. 444, and the decision of this Court in the unreported Case of Mahpal Singh V/s. Manwa and Jankia L.P.A. No. 35 of 1914, dated the 7 of November, 1914. This is a case in which we set aside the judgment of the learned Judge of this Court and restore that of the lower appellate court, but we stay execution for three months, if within that period the defendant is able to provide a way by deepening YY to the south which will permit uninterrupted access. We think that this is a case in which the defendant should confer with the Municipality, and if the defendant can within three months produce before us an alternative scheme which will do away with the necessity of cutting their smaller building in half, as will be the consequence of the order of the lower appellate court, we will vary our order by embodying such scheme in our decree. In our opinion all that would be necessary would be for the defendant to obtain the consent of the Municipality to a passage 6 7" passing round the southern part of the smaller building and proceeding northway until it joins the public way BBBB. We have very roughly in black lead pencil indicated the sort1 of pathway that we mean, but the object of the defendant's obtaining the help of the Municipality is that there may not hereafter come forward some owner of land lying to the eastward of, the smaller building who will contend that the road is an invasion of his private right. On this point we must have proper assurances. Our decision, therefore, to-day is that we restore the judgment of the lower appellate court subject to our embodying in the decree an alternative arrangement within three months if such alternative arrangement can be arrived at. The period of three months is not to be extended unless for good cause shown. The question of costs will be decided later.