ARDESHIR JIVANJI MISTRI Vs. AIMAI KUVARJI

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Subordinate Judge dismissing the plaintiffs" suit for the removal of an encroachment and obstruction to what is alleged to be a gowan or public passage. The learned Judge held that there was or had been a public passage at any rate up to the time of construction of another road about the year 1910, but that Government had in effect an inherent right to stop up or divert any public road and that consequently they were entitled to stop this gowan and to sell it to the original defendant No. 1 for a cash consideration.

(2.) This finding raises a question of considerable public importance. But I should also mention that one of the defences raised was that no public right of way ever existed, and even if it did, the action was defective because the consent of the Advocate General or Collector had not been obtained under Section 91 of the Civil Procedure Code.

(3.) The locus in quo is well shown on the plan Exhibit 67. There are three plaintiffs. Plaintiff No. 1 Ardesar Jiwanji Mistry owns plots 10/2 and 13/1 on that map. They adjoin the disputed passage which runs from X on the Kurla-Versova road to the point Y in the village. The second plaintiff Benedicto DeMello is the owner of plots 10/1 and 13/2, which are to the north of the plaintiff No. 1's land. Plot No. 10/1 adjoins the disputed right of way. The third plaintiff, however, has his lands some way further oft namely, plot 18 in the north of the village. It does not abut on the passage in question. As regards the point Y, if one goes south-westwards from Y one reaches the point Z on the Kurla-Vergova road. It was along this line ZY that the new road was constructed in about 1910. One main contention of the defendants is that by construction of that new road the public right of way in the old road thereupon ceased.