Supreme Court: In a case wherein the appellant had appealed to the Supreme Court after obtaining a certificate under Section 109(c) of the Civil Procedure Code, 1908 from the Allahabad High Court (‘High Court’) for leave to appeal against its judgment and decree, the Division Bench of Fazl Ali* and Vivian Bose, JJ., held that the conclusion arrived at by the Trial Judge that the lane belonged to the appellant was correct, and accordingly upheld the decree passed by him ordering the respondents to close the drain opening into the lane and restraining them from having access to the door in the southern wall of their house or using the lane in any other manner. The Supreme Court opined that the appellant’s demand that the southern wall on the first floor of the respondents’ house should be demolished for the purpose of giving light and air to the latrine and bathroom, which were used only at times, was unreasonable, especially as those rooms could be fitted with lights which might be used when required.
Background
The appellant had a house in Gorakhpur, bounded north by a narrow lane which varied from 3 feet 6 inches to 3 feet. To the north of this lane, there was a house belonging to the respondents. In 1940, the respondents had rebuilt their house partly on the site of the old “kachcha” house and partly on a piece of land to the west of that house, which was formerly an “ahata” or enclosure. The issues for consideration in the present case were:
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Whether the lane between the house of the appellant and the house of the respondents belonged to the appellant or to the respondents, or whether it was a public lane?;
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Whether a wall newly erected by the respondents on the first floor of the house immediately north of the lane obstructed light and air to which the appellant claimed to be entitled?;
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Whether the privacy of the appellant’s house was interfered with on account of the construction of a room by the respondents on the upper storey of their house?.
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Whether the privacy of another house (which was situated to the east of the house of the respondents and was separated from it by a public way) was interfered with by reason of there being an upper storey in the house of the respondents and whether the appellant was entitled to any relief on that account?
The Trial Court held that the lane was a private one belonging to the appellant, and it decided all the issues in favour of the appellant and granted certain reliefs to him. The High Court, on appeal, held that the lane was a public lane, and it further held that the appellant was not entitled to the reliefs claimed by him. Thus, the appellant challenged the findings of the High Court in this appeal before the Supreme Court.
Analysis, Law, and Decision
The Supreme Court noted that in the lane which was the subject of dispute between the parties, the respondents discharged their drain, and they also claimed a right of way through it, and they had also opened a door facing the lane. The Supreme Court also noted that the northern boundary of the old house of the appellant was stated in the sale deed dated 24-03-1862 to be the wall of the house of Mahabir Pershad, who was admittedly the respondents’ predecessor-in-interest and this sale deed was the appellant’s title deed with regard to his house, and the Supreme Court thus, observed that if the statement contained in it as to the northern boundary of the house was taken to be correct, the lane must be held to belong to the appellant. The Supreme Court further noted that there was, however, a deed of gift dated 04-10-1887, executed in favour of the predecessors-in-interest of the respondents, in respect of the house which stands north of the lane, and which now belonged to the respondents. In this document, the property’s southern boundary was stated to be the house of the appellant’s predecessor.
The Supreme Court observed that the Trial Judge had held that the statement in the appellant’s title deed should be preferred to that in the respondents’ title deed, and in support of this conclusion, he had given a number of reasons which appeared to be quite cogent and strong. One of the points on which the Trial Judge had laid stress was that the appellant’s title deed was scribed by a person, who admittedly belonged to the family of the respondents, and it had been pointed out by him that if the lane belonged to the respondents that fact would have been certainly known to him and he would not have subscribed to the statement that the northern boundary of the appellant’s house was the southern wall of the house of the respondents’ predecessor.
The Supreme Court opined that unless the lane belonged to the appellant, he would not have added part of the freshly acquired land to it to have a lane of uniform width up to the western extremity of the newly acquired land. The Supreme Court noted that the Trial Judge had held that if the lane had not belonged to the appellant, he would not have been allowed to use a portion of it and make it a part of his new house. Thus, the Supreme Court opined that if the lane in question had been a public lane, it would have been entered in the municipal papers, but it had not been shown to be so entered and it appeared that the plan of the new house of the appellant, though it included a portion of the lane, was passed by the municipality without any objection. Therefore, the Supreme Court held that the conclusion arrived at by the Trial Judge that the lane belonged to the appellant was correct, and accordingly upheld the decree passed by him ordering the respondents to close the drain opening into the lane and restraining them from having access to the door in the southern wall of their house or using the lane in any other manner.
The Supreme Court opined that the appellant’s demand that the southern wall on the first floor of the respondents’ house should be demolished for the purpose of giving light and air to the latrine and bathroom, which were used only at times, was unreasonable, especially as those rooms could be fitted with lights which might be used when required. The Supreme Court further opined that there could also be no ground for complaint as to the privacy of the appellant’s house being interfered with since the southern wall on the first floor of the respondents’ house was not to be demolished.
In respect of the appellant’s new house, the Supreme Court noted that the house had remained unoccupied for several years, and it further appeared that it would be exposed to view from another house. Thus, the Supreme Court held that no case had been made out for this Court to uphold the decree of the Trial Judge directing the respondents to erect a purdah wall six feet high on the eastern portion of their ground floor roof. The Supreme Court noted that there was a public road immediately to the east of the respondents’ house, and thus, held that it would be unreasonable to prevent the respondents from using the most valuable portion of their house in the way they liked.
Thus, the Supreme Court dismissed the appeal.
[Sheik Altaf Husain v. L. Bhullan Lal, (1952) 1 SCC 296, decided on 07-03-1952]
Note: Use and enjoyment of Property
The person who has the right to the aggregate use of an object is called the owner of the object, and the object is called his property. But this right means a right of general use only. It does not mean that the right is absolute or unlimited. There are two kinds of restrictions on one’s use of his property. The first kind of restrictions are those imposed by law, and it is done in society’s interests. The second kind of restrictions are encumbrances on the property. Encumbrances are the rights of specific or particular user as distinguished from ownership which is right of general user. Encumbrances prevent the owner from exercising some definite rights regarding his property. The main categories of encumbrances are, (a) Leases, (b) Servitudes, (c) Securities, and (d) Trusts.
A property denotes the greatest right of enjoyment known to the law, including servitude. Servitude is an encumbrance on property which gives a right for the limited use of a piece of land to a person or persons without giving them possession of the land, for e.g., a right of way on the land of another is servitude. There is no transfer of possession in case of servitude. Servitudes are of two kinds:
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Private – A private servitude is that in which the right to use vests in a determinate individual or individuals. For e.g., a right of way vested in the owner of one piece of land over an adjoining piece of land is a private servitude.
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Public – A public servitude is that in which the right is vested in the public at large, in some class of indeterminate individuals. For e.g., where the public has a right to highway over one’s private land, it is a public servitude.
Advocates who appeared in this case :
For the Appellant: S.P. Sinha, Senior Advocate (Narain Andley, Advocate with him)
For the Respondents: K.B. Asthana, Advocate
*Judgment authored by: Justice Fazl Ali
