KHIRSINGH MOHKANSINGH LODHI Vs. BRIJLAL KHEMCHAND

JUDGEMENT

(1.) THIS order disposes of two revisions, Civil Revision No. 406 of 1945 and Civil Revision No. 424 of 1945 both arising out of an order dated 1st September 1945 passed by the trial Court in Civil Suit No. 5-A of 1944.

(2.) CIVIL Suit No. 5-A of 1944 was instituted by 5 plaintiffs all residents of Kandeli, tahsil Narsinghpur, district Hoshangabad. The plaint is very inartistically drafted but in short its purport is as follows. The plot of land situate within the Municipal limits of Narsingpur-Kan-deli and demarcated by letters ABCDEF in the map attached to the plaint was at one time a Municipal plot which was used for market purposes, as a recreation ground for the inhabitants of the locality and also for nistar of general public. The Municipal Committee had in 1901 built a pukka drain on this plot, levelled it and to begin with used it as a fish and meat market. Subsequently, it was also used as a grass market and a tonga stand. It is further pleaded that the plaintiffs owned houses which abut on the plot in suit which is also used by "them as a means of ingress and egress to their houses and which connects these houses to the public road. The plaintiffs enjoyed the site openly and as of right for light and air which their houses received from this plot of land for the last 40 years and thus their right to free light and air was established. It was alleged that defendant 1 had obtained from the Municipal Committee a sale deed in respect of this plot in 1942 which according to the plaintiffs was void and he had also obtained from the Municipal Committee permission to build a house on it. According to the plaintiffs, defendant 1 was thus threatening to infringe their rights. They based their claim as owners of the houses for which a right of easement on the land in dispute had been acquired. Besides these private rights of easement, they also based their claim on the inherent rights as citizens of the Municipal Committee and the main relief which they claimed was perpetual injunction restraining defendant 1 from dealing with the land in suit in such a manner as to in-fringe the rights which they have on that land, both as private individuals and as members of the public.

(3.) THE defendants hotly contested the suit and in the written statement of defendant 1 which extends over 26 paragraphs, there is no specific plea of misjoinder of plaintiffs or causes of action. In para. 16 of that statement it was pleaded that: The plaintiffs ware not entitled to sue on behalf of the public They have not obtained any permission of the Advocate-General as provided for in Section 91, Civil P.C. The suit is liable to dismissal with costs for want of proper sanction also.