MOHAMMAD ZAHADUR RAHIM Vs. SATYENDRA NARAYAN MOOKHOPADHYA

JUDGEMENT

(1.) The plaintiff-respondent is a patnidar of village Dadhia while defendant 1 is a patnidar of village Ayarpur which is contiguous to Dadhia. A mela is held on some land in Dadhia on the 3rd, 4 and 5 day after Sripanchimi every year. According to the plaintiff, defendant 1, along with the other defendants, has been trying to set up a rival mela on his land in Ayarpur on the three identical days by setting shopkeepers there by the use of force, violence, intimidation and threat for some time past. On these allegations the plaintiff instituted the suit that has given rise to the present appeal for a declaration of his right to hold a mela oh his land in Dadhia, for damages as compensation for the loss caused to him by the defendants disturbance and interference with the plaintiff's right, and also for a permanent injunction restraining the defendants from holding a rival mela or setting up shops on their land in Ayarpur at the time of the Dadhia mela. The plaintiff's claim wa3 resisted by the defendants on various grounds. These grounds were overruled by the Court of first instance and the trial Judge gave a decree to the plaintiff declaring the plaintiff's right to hold a mela on his land in Dadhia, giving him damages for Rs. 100 and granting the permanent injunction as prayed for. This decision was affirmed on appeal. Defendant 1 is the appellant before us.

(2.) A preliminary objection was raised that the appeal is incompetent inasmuch as the heirs of respondent 7 who was dead had not been substituted and the appellant did not want to proceed against respondents 8 and 9, and the appeal has been dismissed as against these three respondents. I do not think that there is any substance in this preliminary objection. The appeal may have been dismissed as against these three respondents who with the appellant had been made defendants in the suit, but it cannot be contended that the present appeal cannot proceed in the absence of those respondents.

(3.) Mr. Gupta for the appellant had no exception to take to that part of the decree of the lower appellate Court by which the plaintiff had obtained a declaration of his title and also damages. But he strenuously attacked the part by which an absolute permanent injunction had been granted. His contention was that the grant of absolute injunction in the present case whereby the defendant-appellant has been restrained from enjoying his own land is wholly illegal. This contention, in my opinion, is well-founded and must therefore prevail. It is an unassailable proposition of law that an act which is not unlawful in itself does not become unlawful merely because it interferes with other people's business or merely because the motive of the act is bad: see Sorrell V/s. Smith, (1925) AC 700 at pp. 718, 719, 728 and 734. The appellant is the owner of village Ayarpur and as such owner he has every right to hold a mela on his land in Ayarpur on any day he likes just in the same way as the plaintiff has a right to hold a mela on his land in Dadhia. The defendant's action in holding such a mela would not be unlawful merely because it may interfere with the plaintiff's mela or merely because the defendant in holding his mela had a bad motive for his act. But such an act on his part would be an actionable wrong if he would exercise his right of using his land by the employment of illegal means by setting shopkeepers by the use of force or violence or intimidation or threat. In the present case the lower appellate Court has found in a way that the defendant did use intimidation and threat in making the shopkeepers to come to his land. This was certainly an actionable wrong and there would have been nothing illegal in granting an injunction that would, restrain the defendant from doing it.