LALA LALLU MAL Vs. MTAZIZ FATIMA

JUDGEMENT

(1.) This is an appeal by the plaintiffs whose suit for demolition of certain constructions put up by the defendants and for a permanent injunction has been dismissed by both the Courts below. The facts have been given in detail in the judgments of the Courts below and both the Courts have given sketches of the locality in their judgments. The Munsif inspected the locality and a sketch of the locality is given in his inspection notes also. The position briefly is this. In the town of Bareilly there is a market place known as Bazar Englishganj which is situated in mahalla Qila. The particular portion of this mahalla Qila with which we are concerned is divided into four squares by means of two public roads which cross each other at right angles. We are concerned in this case with the square which is situated in the southwest. It is in this square, which has been marked No. 4 in the sketches given in the judgments of the Courts below, that the shops of the parties are situated. The shops of the five persons who have brought the suit are situated towards the west and the south of this square, and the shops of the two defendants are situated towards the north. The allegations on which the claim is based are contained in paras. 4 and 5 of the plaint which are as follows: (4) Even since the Englishganj Bazar has been constructed, which was done more than SO years ago, the custom has been that the pedestrians, ponies and carts, in order to reach the shops situate inside the chowk, have been approaching from the eastern direction through the Sarai Road and from the northern direction through every point, but the owners of the sites running along the public road have, since a period of 25 or 30 years, established temporary shops (stalls) close to the northeast corner and (consequently) the ponies, carts etc. started passing from the north-western corner without any obstruction and hindrance. (5) By reason of the fact that it is necessary for the plaintiffs to have a passage 9 feet 11 inches for the use of their shops and as the said land has always been used for over 50 years as a passage and as it is a settled fact that there will remain a passage towards the east of Fazl Ahmad's shop, the defendants have no right to block the passage.

(2.) It seems to us that these pleadings are very vague and indefinite. It is nowhere stated in the plaint that an easement has been acquired by the plaintiffs or on their behalf by any person in possession of their shops, nor any clear particulars of the time and the manner of the acquisition of any right of easement have been given Para. 5 of the plaint would seem to show that there was some vague idea in the mind of the plaintiffs to claim an easement of necessity. The plaint nowhere alleges that the alleged right of way has ever been exercised by the plaintiffs themselves or by the persons occupying their shops. The allegations in the plaint amount to this, that because persons who have been coming to the shopkeepers occupying the buildings owned by the plaintiffs for many years past and have been bringing their goods for sale to these shopkeepers on carts and ponies and have at their convenience been entering into this square at various points on the northern boundary line of this square, the plaintiffs have somehow or other acquired a right to restrain the owners of the land lying to the north from building on their property and thus obstructing the passage of these visitors to the shops of the plaintiffs. The two defendants who occupy different portions of the land on the north and have erected separate constructions have filed separate written statements and it is in one of these written statements that the word "easement" has been mentioned. When the case came on for trial, the plaintiffs evidently defined their claim and based it on the alleged acquisition of a right of way as an easement by prescription. Issue 1 framed in the trial Court was in these words: Has the plaintiff got an easement of right of way by proscription over the land in suit, and what is the extent of the land subject to the casement?

(3.) The learned Munsif in recording his findings on Issue 1 examined the evidence at length and clearly found how the land had been used by passers by and visitors at different periods in the past. He found that so long as the land lying to the north of this square had not been built upon, people used to enter this square at various points and that there was no definite pathway or lane which either pedestrians or carts or ponies took. Having gone into the matter carefully, the learned Munsif came to the conclusion that no right of easement for carts or cattle-loads is established in favour of the plaintiffs and that "the plaintiffs have no right of easement over the land covered by the constructions in suit." He also found that "No satisfactory user by carts during the last four or five years is established." He accordingly dismissed the suit. The plaintiffs appealed. The lower Appellate Court held that so far as defendant 2, Fazl Ahmad, was concerned no encroachment on the alleged passage claimed by the plaintiffs had been proved and that the plaintiffs therefore had no cause of action against this defendant. He next took up the case of defendant 1, Mt. Aziz Patma, and having discussed certain evidence and other matters, expressed the opinion that all the elements required to establish easement are present." He then proceeded to consider whether the plaintiffs had acquired any right. He found that whatever bullock-carts etc. came into this square did not belong to the plaintiffs or to the tenants occupying their shops from time to time and held that the plaintiffs therefore had no cause of action whatsoever. He expressed the opinion that if anyone could have any grievance against the defendants for putting up the constructions complained of it would be the persons who used to bring their carts, ponies etc., and not the plaintiffs. He accordingly dismissed the appeal.