Deoki Nandan, J. - (1.) -This is a plaintiffs Second Appeal in a suit for declaration, demolition, possession and permanent injunction. The plaintiff-appellants case was that the building of their shop abutted on the Kalpi-Lucknow Highway as it passes through the town of Pukhraiyan in the District of Kanpur. They enjoyed elementary rights of passage, light and air to their shop from the Patri of the road. In April, 1965 the defendant-respondents constructed the disputed shops on the road Patri which obstructed the enjoyment of the said rights of easements by the plaintiff-appellants. The plaintiffs claimed a declaration that the land covered by the shops in suit were their sehan land and also that the plaintiffs had acquired elementary rights of passage, air and light to their shop from that land. They further claimed demolition of the disputed shops and prohibitory injunction restraining the defendant from obstructing the plaintiffs use of the sehan and the enjoyment of their elementary rights.
(2.) The defendants denied that the disputed shops constructed by them were on the road Patri and asserted that they had been constructed on the land obtained by them from the then Zamindar before the abolition of the Zamindari that the land had never been used by the plaintiffs as their sehan and the plaintiffs had never acquired any elementary rights thereon. It was further alleged that the disputed shops did not interfere with the plaintiffs right of passage from the road inasmuch as a strip of land about 8-6" wide had been left between the two shops constructed by the defendants which provided sufficient space to the plaintiffs to pass from the road to their building, and with regard to the elementary rights of light and air, it was alleged that there was no material interference with the same by the constructions raised by the defendants.
(3.) Several points were raised in the suit. The trial court held on the merits that the land in suit was situate within the limits of the town area Pukhraiyan and since the plaintiffs were not agriculturists they could acquire no sehan rights on the land in suit. With regard to the elementary rights, the trial court held that the disputed constructions did not substantially interfere with the physical comfort of the plaintiffs and accordingly the plaintiffs were not entitled to any relief. Before the lower appellate Court it was urged by the plaintiff-appellants that it may be that they could not claim the land in suit to be their sehan land; however, inasmuch as the land in suit was part of a public highway and inasmuch as it lay in front of their shops which the plaintiffs had been using for the purposes of their trade and were continuously using it as such, the defendants could not obstruct their user by constructing the disputed shops. The lower appellate court negatived the contention on the ground that it was admitted by P. W. 1 Bhurelal in the course of his cross examination that there were Khantis on both sides of the road, and P. W. 3 Salik Ram had stated that the Khantis were about 5 feet in width and about 1 feet in depth, which according to the lower appellate court made it highly improbable that the land occupied by the disputed constructions could have been used by the plaintiffs for the purpose of their trade. With regard to the plaintiffs right of passage through the land in suit, the lower appellate court relied on a decision of this Court in Municipal Board, Banaras v. Behari Lal & Brothers (AIR 1926 All 538) and held that the right of passage over a public road is not in the nature of easement, and they could not, therefore, claim any elementary right of passage throughout the land in suit which was alleged by them to be a part of the public road. The lower appellate court also observed that the 8-6" wide strip of land left by the defendant in between the two shops was sufficient for the plaintiffs for the purpose of access from the road to their building and that being so it could not be said that their right of passage was materially interfered with. With regard to elementary rights of light and air claimed by the plaintiffs, the lower appellate court agreed with the finding of the trial court that those rights had also not been materially interfered with and plaintiffs could not therefore, claim any of the reliefs claimed by them.;