BALWANT Vs. PARSHADI LAL

JUDGEMENT

(1.) THIS is a first appeal from order by defendants. The plaintiffs brought a suit alleging in their plaint that they are owners of abadi plots Nos. 32, 25-2 and 48 to 52 in a pertain village and that they had a right of way by prescriptive easement over, plots Nos. 15 and 63 of the said village, that the defendants had constructed a wall on plot No. 15 and had begun to tie their cattle on plot No. 63 and that owing to these wrongful acts the plaintiffs were inconvenienced in going by the right of way over those plots. The defence was that there was a public thoroughfare through the plots Nos. 63 and 15 and that the defendants had built a wall in plot No. 1, but that this did not block the public thoroughfare and that the defendants were owners of plot No. 15. They denied that they had tied their cattle in plot No. 63. The Munsif dismissed the suit on the ground that the suit was barred by Section 91, Civil P.C., deciding only this preliminary point. The lower Court finds that the statement of defendant 2 shows that the wall does not block the way of the public and their cattle and that none of the village people except the plaintiffs have any complaint. Further that the plaintiff's evidence shows that the obstruction has affected the rights of way of the plaintiffs. The lower appellate Court considers that under the circumstances the plaintiffs suit cannot be barred by, Section 91, Civil P.C. The finding of the lower appellate Court is that there was no evidence to show that the people of other villages had been using this way in question. Learned Counsel did not show that this finding is one which should be set aside by this Court in first appeal from order. The map indicates that the numbers in question said to belong to the plaintiffs are in the village site and the map supported the contention of the plaintiffs that the exit from their premises is over the plot No. 15 in question. The finding of fact of the lower appellate Court that this is not a case of a public right by way but of a private right of easement over certain plots is a finding which has not been shown to be incorrect. Under these circumstances Section 91. Civil P.C., cannot bar the case. That section deals with the case of a public nuisance for which it is necessary that the sanction of the Advocate-General should be obtained. The present case is clearly not one of a public nuisance but one of an encroachment of a private easement. Under these circumstances, I dismiss this first appeal from order under Order 41 Rule 11.