RAHIM BAKSH Vs. MUNICIPAL BOARD OF BULANDSHAHR

JUDGEMENT

(1.) The suit which has given rise to this appeal was filed by the appellant for the recovery of a certain sum of money as damages on account of injuries sustained on account of an accident with which the plaintiff met. Both the Courts below have dismissed the suit. The case of the plaintiff was that he was a tenant of a house belonging to Sm. Ram Devi in a certain mohalla within the municipal limits of the town of Bulandshahr, that immediately to the south of that house there was a drain belonging to the Municipal Board, that to the south of that drain there was a road, also belonging to the Municipal Board, that the Municipal Board did not keep the road in proper condition, nor had made proper arrangements for lighting it, that on the night of 3 June 1932 the plaintiff fell into the drain because the Municipal Board had not erected anything in the nature of a boundary wall or "munder" between the drain and. the road and because there was insufficient light and also because the plaintiff's eyesight is weak, and sustained injuries which necessitated medical treatment and cessation of his business. When the plaintiff entered the witness-box he elaborated his allegations in the plaint by explaining that, on the night in question he felt thirsty about 1 A.M., that he was always in the habit of drinking water freshly drawn from the well, that therefore ho started to go to a well which is situated in the south of the road in question, and that, on his way to the well he fell into the drain. The Municipal Board had contested the suit on various grounds. The trial Court, while holding that the plaintiff's story as to his fall into the drain and the consequent injuries was true, held further that the plaintiff's statement that he had fallen into the drain from the road was untrue, am that the fact was that he had slipped while he was still on the culvert over the drain which connects the house occupied by the plaintiff with the road to the south of the drain, and had fallen into the drain. The plaintiff had made no mention of the culvert cither in his plaint or in his statement in f ho witness-box.

(2.) The trial Court proceeded to consider the question as to whether the culvert or bridge belonged to the Municipal Board or to someone else and came to the conclusion that it had been built by the Municipal Board. It also held that there was no parapet or "rounder" between the road and the drain and that the light in the vicinity was insufficient. It however dismissed the suit on the ground that the plaintiff had been guilty of contributory negligence. The plaintiff appealed to the lower Appellate Court. That Court was of opinion that the plaintiff having never mentioned the culvert in the plaint or in his statement in the witness-box and the issue as to its ownership having never been raised it was not right for the trial Court to decide that point without giving an opportunity to the Municipal Board to lead evidence on the point. It accordingly framed an issue and remitted it to the trial Court under Order 41, Rule 25, Civil P.C., for a finding and directed that the parties should be allowed to adduce fresh evidence. The finding submitted by the trial Court on this issue was that the culvert or bridge in question had not been built by, and did not belong to the Municipal Board but that it had been constructed by one Barkat Ali, who was the predecessor, in-title of Shrimati Ram Devi, the owner of the house in which the plaintiff is living as a tenant. It was also found that there was no evidence on the record to show that the culvert in question was ever maintained by the Municipal Board in any manner. The lower Appellate Court then heard the appeal again and agreed with these findings of the Court of first instance. It also agreed with the trial Court in holding that the plaintiff's story that he had fallen into the drain while he was walking along the road was untrue and that the fact was that his foot had slipped and he had fallen into the drain while he was still on the culvert. On these findings the lower Appellate Court held that as the culvert was the private property of the owners of the house in which the plaintiff was living as a tenant and that the plaintiff had not met with any accident on the road, the plaintiff was not entitled to any decree against the Municipal Board. In this view of the matter the Court did not think it necessary to decide the question of contributory negligence.

(3.) It seems to us that on the findings of fact recorded by the Court below the plaintiff's suit has been rightly dismissed. It has been suggested by the learned Counsel for the plaintiff-appellant that it was the duty of the Municipal Board to make sufficient provision for lighting the culvert in question, and reference has been made to Section 7, U.P. Municipalities Act (2 of 1916). That Section lays down, among other things, that it shall be the duty of every Board to make reasonable provision within the Municipality for lighting public streets. The learned Counsel has entirely failed to show that the culvert in question can in any sense of the term be regarded as a "public street," or even as a "street," as defined in the U.P. Municipalities Act.